US Supreme Court Weighs Trump’s Use of Emergency Powers to Impose
Tariffs
The justices face a so-called legitimacy
dilemma as they deal with a tricky legal dispute and a president who has made
clear he would view defeat as a personal insult.
The U.S. Supreme Court is set to hear a landmark
case challenging President Donald Trump’s use of emergency powers to impose
sweeping tariffs on nearly all major trading partners — a move he argues is
vital to national security and economic defense. The
case, which tests the limits of presidential authority under the 1977
International Emergency Economic Powers Act, poses a major legal and political
test for the court’s conservative majority, which has often sided with Trump on
interim rulings.
Small businesses and states contend that Trump’s
tariffs — justified as a response to trade deficits and fentanyl flows — exceed
his legal authority and amount to unauthorized taxation, a power reserved for
Congress. The administration warns that overturning the tariffs could trigger
economic turmoil and weaken U.S. trade leverage.
The justices must now decide whether the
president’s broad interpretation of emergency powers violates constitutional
principles such as the nondelegation and major questions doctrines,
both central to recent rulings limiting executive overreach. Analysts say the
outcome could redefine the scope of presidential power and shape future clashes
over Trump’s second-term agenda.
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!”