Supreme Court Confronts Trump and His Tariffs in Test of Presidential Power

Again and again since President Trump returned to the White House, the Supreme Court’s conservative majority has blessed his boundary-pushing policies, allowing them to take effect on an interim basis while litigation plays out in the lower courts.

But on Wednesday, the justices will consider for the first time whether to say “no” to Mr. Trump in a lasting way.

At issue is the legality of his signature economic policy: the use of emergency powers to impose sweeping tariffs on nearly every U.S. trading partner. The outcome of the case could significantly affect the global economy, American businesses and consumers.

Experts say the case is a tossup that poses difficult legal and political considerations for the justices, made all the more tense by Mr. Trump’s efforts to personalize the dispute.

Mr. Trump had mused about attending the court’s argument this week, and has spoken repeatedly of the case’s importance to him. On Sunday, he said he decided against going to court, but stressed that he considered the stakes to be monumental.

The case “is one of the most important in the history of the country,” Mr. Trump wrote in a post on Truth Social. “If a president was not able to quickly and nimbly use the power of tariffs, we would be defenseless, leading perhaps even to the ruination of our nation.”

Observers of the court said the justices would be keenly aware that Mr. Trump would perceive a legal defeat as a personal blow.

“You can’t help but think that that’s going to be hovering over the decision-making process in this case,” said Donald B. Verrilli Jr., who was the solicitor general during the Obama administration.

The Supreme Court’s six conservative justices have so far been receptive to Mr. Trump’s claims of presidential authority. Among other things, they have allowed the administration to withhold funds appropriated by Congress, kick transgender troops out of the military and pursue aggressive immigration-related policies — but all on a temporary, emergency basis.

The tariffs case is the first time the justices have weighed the underlying legal merits of a key administration priority in Mr. Trump’s second term.

Other such cases are on the horizon. Next month, the court will consider Mr. Trump’s efforts to seize control of independent agencies. And in January, the justices will weigh his attempt to remove a member of the Federal Reserve Board. The administration has also asked them to consider the legality of the president’s executive order ending birthright citizenship.

Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer under George W. Bush, said that because the legal issues were so closely contested in the tariffs matter, some justices could weigh broader implications across the set of presidential cases, concerned about either handing Mr. Trump too much power — or too many defeats.

“At the end of this term, we’ll see wins and losses for Trump on presidential power,” he said. “This is the case I think is the closest, so I don’t know which way it will cut.”

In a sign that the court recognizes the importance of the tariffs case, the justices set a brisk schedule for the parties to submit written briefs and present oral arguments. They now seem likely to rule swiftly rather than wait until the end of the term next summer, as is their usual practice for the most consequential decisions.

The case has divided the conservative legal community.

The Constitution gives Congress the power to impose taxes. But soon after taking office, Mr. Trump declared that a 1977 law gave him the power to impose tariffs unilaterally during emergencies.

He used the statute to announce tariffs on goods imported into the United States from China, Canada and Mexico, saying the levies were a punishment for failing to stop the flow of fentanyl. In April, he again relied on the International Emergency Economic Powers Act when he announced tariffs on imports from more than 100 trading partners, saying they were needed to address trade deficits with the rest of the world.

The administration’s on-again, off-again taxes on imports have roiled small businesses, prompting lawsuits from state officials and six companies, including the wine importer V.O.S. Selections and the toy manufacturer Learning Resources, whose cases are before the court on Wednesday. Mr. Trump’s actions, they say, were unlawful, cut into their profits and forced them to lay off employees and raise prices.

The 1977 statute gives the president certain tools to “deal with any unusual and extraordinary threat” to “the national security, foreign policy or economy of the United States.” That includes the power to “regulate” imports.

The president’s lawyers say that language gives him broad authority to impose tariffs when he believes an emergency exists.

But the law does not mention the words “tariffs,” “taxes” or “duties.” If the word “regulate” meant “tax,” the small businesses told the court, the president “could tax everything from autos to zoos.”

From the start, the administration has insisted that the consequences for the country are too significant for the court to resist Mr. Trump. They say that rolling back the tariffs — and potentially refunding money already collected — could lead to economic ruin akin to the Great Depression, an interruption of trade negotiations and diplomatic embarrassment.

“I think the more deals we’ve done, the more money coming in, it gets harder and harder for SCOTUS to rule against us,” Treasury Secretary Scott Bessent said in August, using an acronym for the Supreme Court.

But prominent legal figures opposed to the tariffs, including retired federal judges and a founder of the conservative Federalist Society, said the case was not a close call. While past presidents have invoked the emergency statute to impose sanctions or to freeze a country’s assets, Mr. Trump is the first in 50 years to rely on it to impose tariffs.

“Emergency powers are meant to be used in emergencies,” said Michael W. McConnell, a former federal appeals court judge nominated by President George W. Bush, who is leading the coalition of small businesses. “No Supreme Court would want to provoke a confrontation with a president of the United States unnecessarily, but on the other hand, the law is the law.”

The president’s order argued that the tariffs were needed as a response to “large and persistent” trade deficits.

Tara Leigh Grove, a University of Texas at Austin law professor, said the justices could find it a stretch to characterize longstanding trade deficits as an emergency. On the other hand, she said, the statute is broad and appears to give a president a lot of discretion.

“The justices will be struggling with whether they want to second-guess any presidential decision about an emergency,” she said.

The case will also force the justices to address two doctrines favored by the conservative legal movement, both of which appear to work against the president’s claims. The “major questions doctrine” says Congress must use clear language to authorize executive actions that could transform the economy. The Supreme Court relied on the doctrine to invalidate many of President Joseph R. Biden Jr.’s key initiatives, including his student loan forgiveness program.

The other — the “nondelegation doctrine” — says that Congress cannot transfer unlimited legislative powers — like its taxing authority — to the executive branch.

D. John Sauer, the solicitor general, said the president’s use of the statute to impose tariffs was not an unlimited delegation of power. The law requires declared emergencies to expire in a year and reporting to Congress about the tools used in the meantime. Even so, he said the president’s power to declare an emergency was not subject to review by the courts.

“Judges lack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response,” he wrote in a court filing.

Mr. Sauer also pointed to a recent concurring opinion from Justice Brett M. Kavanaugh in another case that suggested the two doctrines play little to no role in the context of national security and foreign policy emergencies.

The challenges to Mr. Trump’s tariffs reached the Supreme Court after judges in three different lower courts ruled against the administration but allowed the import taxes to remain in effect while litigation continued.

In a 7-to-4 ruling in late August, the U.S. Court of Appeals for the Federal Circuit said the emergency statute did not authorize “tariffs of the magnitude” the president announced.

“Whenever Congress intends to delegate to the president the authority to impose tariffs, it does so explicitly,” the majority said, declining to decide whether the statute might allow Mr. Trump to impose more limited tariffs.

The appeals court did not divide along ideological lines. Close observers of the court have pointed to a dissenting opinion from Judge Richard G. Taranto, who was appointed by President Barack Obama, as a possible guidepost for the Supreme Court’s conservatives, should they back Mr. Trump.

Judge Taranto argued that Congress intentionally used broad language to give presidents flexibility, embodying “an eyes-open congressional grant of broad emergency authority in this foreign affairs realm.”

Mr. Sauer referred to Judge Taranto’s dissent 10 times in his filing.

Professor Grove said the Supreme Court would face what she described as “legitimacy dilemma” as they weigh the implications of their decision for the president’s legacy and the economy.

The court’s authority and reputation depend on setting aside political considerations and focusing on the law. At the same time, the justices cannot ignore public pressures and perceptions.

“No matter what they do in this case, it will be painted as political,” Professor Grove said.

Had Mr. Trump shown up in the courtroom on Wednesday, he would have been the first sitting president to attend oral arguments.

Trump’s presence would have raised the stakes further, creating an awkward environment during typically staid oral arguments.

“I doubt the court wants to be perceived as bowing down to him,” Professor Goldsmith said. If he did attend, “it’s just going to make it harder for them to rule for him.”

Instead, the president said in his social media post Sunday that he did “not want to distract from the importance of this decision,” adding that if the court rules against him, “our country could be reduced to almost third world status — pray to God that that doesn’t happen!”