The Supreme Court on Wednesday appeared unlikely to rule in favor of President Donald Trump’s tariffs and raised concerns about the administration’s position that the president’s plans are exempt from a legal doctrine that felled a landmark Obama-era climate rule.
During oral arguments on Trump’s tariff power, a central component of his economic agenda, members of the court’s conservative supermajority appeared unconvinced that the major questions doctrine — which requires Congress to clearly authorize executive action on politically and economically significant issues — does not apply to foreign affairs or national security measures.
“It seems that it might be directly applicable,” Chief Justice John Roberts said of the major questions doctrine during an exchange with Solicitor General D. John Sauer.
Roberts, who is often a swing vote, authored the 2022 decision West Virginia v. EPA, which invalidated EPA’s Clean Power Plan and marked the court’s first use of the major questions doctrine by name.
At issue in Wednesday’s consolidated argument in Learning Resources v. Trump and V.O.S. Selections v. Trump was the president’s decision at the start of his second term to issue tariffs on foreign-made goods under the International Emergency Economic Powers Act (IEEPA). The 1977 statute gives the president the power to respond to an “unusual or extraordinary threat” that originates at least partly from outside the country. The statute had never been used to impose tariffs before the Trump administration.
The administration claimed that two declared national emergencies — one involving the flow of illicit drugs and another from the “lack of reciprocity” in bilateral trade — provided grounds to impose tariffs on China, Canada, Mexico and other U.S. trading partners under IEEPA.
Justice Neil Gorsuch, another member of the court’s conservative wing, prodded Sauer on Wednesday about whether the administration’s position opens the door for another president to declare different types of emergencies to advance major policy goals.
“Could the president impose a 50 percent tariff on gas-powered cars to deal with the unusual and extraordinary threat from abroad of climate change?” Gorsuch asked.
“It’s very likely that could be done,” Sauer said.
Gorsuch responded: “I think that has to be the logical conclusion.”
“Obviously, this administration would say that’s a hoax, it’s not a real crisis but —” Sauer said.
“I’m sure you would,” Gorsuch interjected.
Sauer finished: “— that would be a question for Congress, not the courts.”
Gorsuch’s inquiry built upon a line of questioning from liberal Justice Sonia Sotomayor earlier in the argument.
If former President Joe Biden had, for example, wanted to tax fossil fuels, Sotomayor asked Sauer, all he would have had to do is declare a national emergency on global warming “or some foreign-facing purpose?”
“I don’t understand this argument … that foreign powers or even an emergency can do away with the major questions doctrine,” she said, pointing Sauer back to the Supreme Court’s 2023 decision rejecting Biden’s student debt relief plan under a Covid-19 emergency declaration. “Didn’t we in a Biden case recently say that an emergency can’t make clear what’s ambiguous?”
During the second half of Wednesday’s argument, Justice Amy Coney Barrett asked Neal Katyal, former principal deputy solicitor for the United States and the attorney for businesses and states opposing Trump’s tariffs, how difficult it would be for the government to refund tariffs it has already collected if the administration loses its case. Barrett, another frequent swing vote in cases, asked whether the process would be “a complete mess.”
Katyal responded: “That just underscores how major a question this is.”
Reading the tea leaves
Some court watchers suggested after the arguments that the Trump administration could have a hard time finding enough votes to support its rationale for the tariffs.
“This is a court that has favored the idea that when an agency does something that is extraordinary and major, it cannot do so without going to Congress first,” said Arizona Attorney General Kris Mayes, who was among 12 attorneys general to file suit against the Trump tariffs.
“And a couple of the justices compared the tariff scheme that Trump put in place to a major questions doctrine. I thought that was a really good sign,” said Mayes, a Democrat.
Joshua Zive, senior principal at the firm Bracewell, said the Supreme Court’s questions appeared to be more aligned with the businesses opposing the tariffs.
He noted that Gorsuch, Justice Clarence Thomas and others raised concerns that allowing the president to impose broad tariffs without congressional authorization could undermine the separation of powers between the branches of government.
Mark Chenoweth, president of the New Civil Liberties Alliance, which has filed its own litigation against the Trump administration’s tariffs under IEEPA, said during a press call that that some members of the court appeared leery about how the justices’ ruling in the case could create an opening for a future president to declare a climate emergency under IEEPA.
“I don’t think there will be five conservative votes for that,” Chenoweth said.
Reporter Finya Swai contributed.
