Supreme Court Appears Skeptical of Legality of Most of Trump’s Tariffs

The Washington Post

12:52 JST, November 6, 2025

The Supreme Court appeared skeptical Wednesday that President Donald Trump has legal authority to impose tariffs on a vast range of goods from nearly all countries, signaling the justices could strike down or sharply limit the administration’s signature economic policy.

Liberal justices were expected to be critical of Trump’s tariffs, but several of the court’s conservatives joined them in sharply questioning an attorney for the Trump administration during more than 2½ hours of arguments.

Justice Neil M. Gorsuch, for example, wondered aloud about the implications of granting the president tariff authority with few bounds. The Constitution assigns Congress the power to levy taxes, he noted, appearing wary of such a dramatic expansion of the power of the chief executive.

If Congress can hand off its tariff power to the president, “what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce – or, for that matter, declare war – to the president?” Gorsuch asked Solicitor General D. John Sauer, who argued for the administration.

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

Sauer said that Congress could not go that far: “That would really be an abdication, not a delegation,” of power, he said. Gorsuch appeared unconvinced.

The case is the most significant dispute over the president’s policies to reach the high court to date and the first in which the justices could be called on to render a final decision, and the stakes could hardly be higher. The nonprofit Tax Foundation says the Trump administration has already collected $88 billion in International Emergency Economic Powers Act (IEEPA) tariffs through September and is projected to take in $2.3 trillion over the next decade.

The decision could affect global trade, the U.S. economy, inflation, businesses and the wallets of every American. It is the first major test of whether the court will embrace or limit Trump’s assertions of broad executive power in his second term.

The ruling could also be a make-or-break political moment for Trump’s presidency. He has made tariffs central to his tenure, wielding them as leverage not only in trade negotiations but also in a wide range of disputes both large and small. He called the case “one of the most important in the History of the Country” in a Truth Social post and later called it “literally, LIFE OR DEATH for our Country.”

“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,” Trump wrote in the earlier post.

Trump could use other laws to reimpose some of his tariffs if he loses the current case – a point that some of the justices noted. Most of those laws, however, impose procedural and substantive requirements that don’t allow for the sort of freewheeling, wide-ranging power Trump has claimed the international emergency law gives him.

The importance of the case is underscored by the fact that the justices agreed to hear it on an expedited basis. The quick timeline could indicate they may issue a decision in the coming weeks or months, rather than at the end of the term in June or July, when they typically release major rulings.

Beginning in February, Trump began announcing major tariffs, claiming authority to do so under IEEPA, a 1977 law that has typically been used to impose sanctions on foreign countries that pose a threat to the United States. No president had previously claimed that the law gave them the authority to impose tariffs, and the law does not mention tariffs.

The law allows the president to declare an emergency to “regulate … importation” of foreign goods to “deal with any unusual and extraordinary threat” to “national security, foreign policy, or economy.”

In that February round of tariffs, Trump levied import taxes between 10 and 25 percent on China, Mexico and Canada for allegedly failing to stem the flow of fentanyl and other drugs across the border, which he cited as an emergency.

In April, at an event he dubbed “Liberation Day,” Trump announced a universal 10 percent tariff on nearly every American trading partner and higher levels on some individual countries. In that case, the emergency, Trump said, was trade deficits that he claimed have decimated American manufacturing.

By some measures, the average tariff rate is higher than at any period since the Great Depression. Trump has repeatedly imposed levies, then delayed or revoked them, which has unsettled financial markets, businesses and global trade.

Sauer framed Trump’s use of the tariffs in the same dire terms as the president, saying Wednesday that “exploding trade deficits” had undermined the U.S. economy. “They threaten the bedrock of our economic security,” he said.

He argued the economic emergency law’s language about regulating importation covers tariffs. To bolster that argument, he highlighted that a court had upheld President Richard M. Nixon’s power to impose tariffs under a statute that was a predecessor to IEEPA and used the same language.

The justices, however, repeatedly interrupted him to push back, noting the lack of any language in the economic emergency law that would specifically authorize a tariff.

“If you look at … all the tariff statutes that Congress has passed, I mean, they use language about revenue-raising tariffs and duties and taxes,” liberal Justice Elena Kagan told Sauer. “All the language that does not appear in the statute you rely on.”

Sauer repeatedly responded to such criticism by saying the tariffs were not a tax, but a means of regulating trade. The money they raised was “only incidental,” he said.

Small businesses and states that sued over Trump’s tariffs say he has greatly overstepped his authority.

Neal Katyal, an attorney who represented the businesses, pointed out that no previous president understood the economic emergency law to grant the authority Trump claims. Trade deficits, which have existed for decades, do not meet the definition of an emergency necessary to invoke the law’s powers, he argued. He also said Congress had been clear in other laws that granted the president the power to impose tariffs and always included strict limits.

“This is an open-ended power to junk the tariff laws,” Katyal said of Trump’s use of IEEPA.

Conservative Justices Brett M. Kavanaugh and Samuel A. Alito Jr. were most skeptical of the arguments made by the states and small businesses challenging Trump’s policy. Kavanaugh questioned their contention that the law’s language allowing the president to “regulate” trade could give him power to ban trade with a nation but not allow tariffs, a point also raised by Justice Amy Coney Barrett.

“Your interpretation would allow the president to shut down trade with other countries but not impose a 1 percent tariff?” Kavanaugh asked. “That doesn’t seem to have a lot of common sense behind it.”

Oregon Solicitor General Benjamin Gutman, representing the states that challenged the tariffs, responded to that argument by noting that the government would be significantly more likely to levy a tax than to impose an embargo.

“To be blunt about it, one of them there’s something in it for the government, and one of them there isn’t,” he said, noting that tariffs bring in tens of millions of dollars. “Actions that bring in revenue from the pockets of taxpayers to the Treasury pose a different set of concerns,” he said.

Several justices also suggested that Trump’s claim of broad power to impose tariffs would violate the court’s “major questions” legal doctrine, which holds that if the executive branch claims authority under a statute to carry out a policy that has major economic or political consequences, the statute has to explicitly grant that power. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Gorsuch each returned to that point during the arguments.

The court’s conservative majority invoked the major question doctrine to strike down Biden administration initiatives on student loan forgiveness, coronavirus vaccine mandates and climate change. Roberts expressed skepticism that Trump’s use of IEEPA could pass the major questions test, because the president has interpreted the law to provide him virtually unlimited tariff powers.

“It does seem like that’s a major authority,” Roberts said.

The administration says the tariffs are restoring America’s industrial base and have induced trading partners to make deals and invest in the United States. It also says a ruling against the administration will force the Treasury to refund tens of billions of dollars, which will put a strain on the nation’s finances.

Barrett picked up on that argument, saying that unwinding the tariffs by requiring the Treasury to issue tens of millions of dollars in refunds would be a logistical “mess.”

Critics say the tariffs are leading to higher inflation and are a major drag on the U.S. economy. Consumer prices rose in September, an increase many economists attributed in part to Trump’s tariffs.

The Tax Foundation estimates the average U.S. household will pay an extra $1,300 in taxes in 2025, while the Yale Budget Lab calculates households will have to shell out about $2,400 this year for tariff-related markups.

The tariff case is the first of three that will determine how far the court is willing to go in accommodating Trump’s claims of expansive presidential power. In December, the court will consider whether to overturn a 1935 precedent that insulates independent agencies from political interference by the White House. In January, it will explore whether Trump can fire a member of the Federal Reserve.

Trump had indicated initially that he would attend the court’s argument but later backtracked. Treasury Secretary Scott Bessent and Commerce Secretary Howard Lutnick did attend.

Christine Abely, a law professor at the University of New Hampshire, said the court’s decision will have enormous implications, especially if the justices side with the president.

“This would really be a fundamental shift in, I think, what a lot of legal scholars view as the president’s authority to impose tariffs,” Abely said.

Daniel Urman, a professor of law at Northeastern University, said he thinks the justices will also weigh considerations beyond the legal ones. The court, which has granted win after win to Trump in a series of temporary cases, may be looking for a chance to check the president with two other major cases dealing with presidential power on the horizon.

“I don’t think five-plus justices want President Trump to get his way on all the executive power decisions,” Urman said. “I do think they care about public perception.”