Key Questions From Conservative Justices in the Tariffs Case

A lawyer for the Trump administration faced a barrage of sharp questions from conservative members of the Supreme Court in Wednesday’s arguments over central elements of the president’s tariffs program. The questioning, while not uniformly skeptical, was at odds with the portrait of the court that had emerged from the more than 20 emergency orders allowing many other aspects of the administration’s agenda to proceed, at least temporarily.

The tariffs argument was different. Though the court put it on a fast track, it followed full briefing and is poised to yield a substantial — and most likely landmark — decision, with elaborate reasoning on the scope of presidential power. And there was substantial evidence that several of the court’s six Republican appointees were troubled by aspects of the administration’s arguments.

The case also tested the consistency of the conservative justices’ commitments to textualism, the method of interpretation that bears down on the words of a statute at the expense of its purpose and consequences, and to other doctrines associated with the conservative legal movements.

Here are some illuminating moments from the argument.

How specific does Congress have to be?

“The statute doesn’t use the word ‘tariffs.’” — Chief Justice John G. Roberts Jr.

The administration says that a 1977 law, the International Emergency Economic Powers Act, authorized President Trump to impose his vast tariffs program. But that position faces a threshold problem: The law does not use that word or similar terms like “duties,” “customs,” “taxes” or “imposts.”

Chief Justice Roberts and other members of the court questioned whether the law permitted tariffs if it did not use the word or a synonym for it. Some justices also noted that no other president had invoked the law to impose tariffs in its nearly 50-year history.

The words of the statute

“General Sauer, can I just ask you a question? 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?” — Justice Amy Coney Barrett

D. John Sauer, the solicitor general, said that even if the law did not mention “tariffs,” it allowed the president to regulate importation and that those two quoted words justified the administration’s expansive tariffs program. (The ellipses in the court transcript took the place of 16 other words in the statute that Mr. Sauer and Justice Barrett skipped.)

Mr. Sauer pointed to a predecessor of the 1977 law but could cite no other statute in which the power to regulate imports had been interpreted as the power to impose tariffs. For a court that cares about history and that can be wary of novelty, the exchange may be significant.

The major questions doctrine

“You dismissed the applicability of the major questions doctrine, and I want you to explain that a little bit more. I mean, it seems that it might be directly applicable” because “the justification is being used for a power to impose tariffs on any product from any country in any amount for any length of time.” — Chief Justice Roberts

In his 2023 opinion striking down President Biden’s $400 billion student debt relief program, the chief justice invoked the major questions doctrine, which requires plain and direct statutory authorization for executive actions with vast economic consequences. The tariffs case, he suggested on Wednesday, might not clear that hurdle in light of the statute’s general language and the trillions of dollars at stake.

Can Congress turn over its power to the president?

“Congress decides tomorrow: ‘Well, we’re tired of this legislating business. We’re just going to hand it all off to the president.’ What would stop Congress from doing that?” — Justice Neil M. Gorsuch

Justice Gorsuch’s question operated on two levels. One invoked the nondelegation doctrine, which says that Congress violates the Constitution by granting unfettered discretion to the executive branch. Justice Gorsuch has urged the court to revive the doctrine, which has been largely dormant since 1935, when the Supreme Court struck down New Deal laws for granting too much leeway to executive agencies with insufficient guidance.

But Justice Gorsuch’s comments, part of an extended and heated series of questions, also had a subtext. The current Congress, he seemed to indicate, has been too apt to cede its legislative authority to the president.

A one-way ratchet

“Congress, as a practical matter, can’t get this power back once it’s handed it over to the president. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.” — Justice Gorsuch

Justice Gorsuch made an important practical point. Once Congress authorizes the president to unilaterally exercise what may seem to be legislative power — and a global tariffs program would seem to qualify, given that the Constitution grants the power to tax to Congress — it is very hard to claw it back.

No president would give up such power voluntarily, he said. And if Congress were to pass new legislation to try to reclaim it, lawmakers would almost certainly face a presidential veto that could be overcome only by two-thirds majorities in each house, a nearly impossible notion in the current, and most other, environments.

Other statutes may justify the tariffs program

“The question was whether it would make more sense for us to address” another law that might justify the tariffs “and get it over with rather than having this continue for who knows how long.” — Justice Samuel A. Alito Jr.

Justice Alito made an unusual and telling suggestion. He said that laws other than the 1977 statute before the court might justify Mr. Trump’s tariffs and suggested that the court might consider ruling on whether those statutes supported his tariffs in the current case rather than waiting to weigh in for future lawsuits that challenged them. That is not how appellate litigation typically works, and it was an indication that Justice Alito thought the administration was likely to lose on the arguments it actually presented.

A possible lifeline for the administration

“If this license fee is raising revenue, then it actually functions as a tariff.” — Justice Barrett

The 1977 law grants the president authority to act “by means of instructions, licenses or otherwise.” Justice Barrett suggested that provision might give the administration an escape route by relabeling tariffs as licensing fees.

“This license thing is important to me,” she said.

Justice Gorsuch seemed to endorse the approach.

“We’ve been focused on ‘regulate importation,’” he said, “but, actually, the statute says the president may by means of licenses or otherwise regulate importation. And we’ve had some discussion today about the fact that maybe the president could simply recharacterize these tariffs as licenses or rejigger the scheme so that they are licenses.”