Conservative and liberal Supreme Court justices alike seemed dubious of President Trump’s tariffs justified by declarations of national emergencies as they heard arguments in a legal challenge to the policy.
The court will now begin drafting its opinion behind closed doors after a nearly three-hour hearing that provided a glimpse into the justices’ thinking.
Here are five takeaways from Wednesday’s oral argument.
Conservative majority split
The justices seem unlikely to split along its 6-3 ideological lines when ruling on Trump’s tariffs.
Three of the court’s conservative members posed penetrating questions to the Trump administration, expressing unease about the expansion of executive power sought by the president.
Justice Amy Coney Barrett wondered early on whether there is “any other place” in the law or “any other time in history” where a phrase key to Trump’s position, “regulate importation,” has been used to confer tariff-imposing authority.
Chief Justice John Roberts noted that the emergency statute at the case’s core has never been used to justify tariffs.
“No one has argued that it does until this particular case,” he said.
And Justice Neil Gorsuch looked for where to draw the line.
“You say we shouldn’t be concerned, because this is foreign affairs, and the president has inherent authority, and so delegation [is] off the books, more or less,” Gorsuch said. “What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce — for that matter, to declare war — to the president?”
“We don’t contend he could do that,” Solicitor General D. John Sauer said.
“Why not?” Gorsuch pressed.
‘Major questions’ doctrine
A legal theory that the Supreme Court has cited when striking down major Democratic initiatives could be the coup de grace for Trump’s emergency tariffs.
Several justices raised the “major questions” doctrine, which holds that presidents may not enact initiatives with sweeping economic or political implications where Congress’s intentions are vague.
The Supreme Court’s conservative majority has cemented the major questions doctrine in a series of recent cases that have demolished Democratic presidents’ unilateral initiatives, including former President Biden’s student debt cancellation plan.
The tariff challengers hope to now use it against Trump. He relies on the International Emergency Economic Powers Act (IEEPA) to justify his levies, but the law does not explicitly use the word “tariffs.” Instead, it says the president can “regulate … importation” in response to certain national emergencies.
Several of the court’s conservatives appeared open to invoking the doctrine once again.
Roberts noted that Trump uses emergency powers to justify his tariffs on “any product, from any country, in any amount, for any length of time.”
“You dismiss the applicability of the major questions doctrine, and I want you to explain that a little bit more,” the chief justice told Sauer. “I mean, it seems that it might be directly applicable.”
The first justice to raise the doctrine was Justice Sonia Sotomayor, who questioned how Trump’s tariffs squared with the court’s ruling against Biden. She asked whether the former Democratic president could have prevailed in his student loan cancellation efforts if he had only invoked an emergency, like Trump.
But the Trump administration contends the major questions doctrine doesn’t apply to foreign policy and national security issues, because those are uniquely within the president’s purview.
“I believe the Court has never applied the major questions doctrine in the foreign policy context,” Sauer told Sotomayor.
Emergencies beget emergencies
IEEPA only provides the president with emergency powers to respond to an “unusual and extraordinary threat” outside the country. Trump has cited emergencies over fentanyl and trade deficits.
It led the justices Wednesday to fire off hypotheticals of purported emergencies presidents might cite down the road if they accept Trump’s view.
“We’ve had cases recently which deal with the president’s emergency powers, and it turns out we’re in emergencies everything all the time about, like, half the world,” Justice Elena Kagan quipped.
Gorsuch asked if a future president could impose a 50-percent tariff on gas-powered cars to deal with the threat of climate change. Sauer agreed it could “very likely” be done.
“I think that has to be the logic of your view,” Gorsuch said.
Sauer responded, “Yeah. In other words, I mean, obviously, this administration would say that’s a hoax, it’s not a real crisis, but —”
“I’m sure you would,” Gorsuch cut in before moving on.
Others piled on as well. Justice Samuel Alito questioned if IEEPA would allow the president to impose a tariff to stave off an imminent war, while Justice Clarence Thomas posed a scenario in which tariffs are used as leverage to recover an American hostage detained by a trading partner.
One-way ratchet
A theme throughout the argument was a concern shared among several justices and the plaintiffs, summed up neatly by Gorsuch: “Congress, as a practical matter, can’t get this power back once it’s handed it over to the president,” the Trump appointed justice said. “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.”
To take that power back, Congress would need a veto-proof majority, both he and Barrett noted. Barrett posed a scenario where the court does side with Trump.
“If Congress said, ‘Whoa, we don’t like that. That gives a president too much authority under IEEPA,’ it’s going to have a very hard time pulling the tariff power out of IEEPA,” the most junior conservative justice said.
“A hard time, certainly, which would be true of any case where this court definitively interprets a statute,” Sauer noted.
But the plaintiffs portrayed a decision in the administration’s favor as irreversible.
“We will never get this power back if the government wins this case,” said Neal Katyal, who represented the small businesses challenging Trump’s initiative. “What president wouldn’t veto legislation to rein this power in and pull out the tariff power?”
Cabinet members, John Mulaney in attendance
No cameras were allowed inside the courtroom Wednesday, but it was quite a scene, nonetheless.
The mood on the bench did not feel as tense as some other recent high-profile arguments, and the courtroom broke into laughter more than a half-dozen times.
Sotomayor, the court’s most senior liberal justice, even forewent asking a question about the implications of a 1976 precedent because Justice Brett Kavanaugh, a member of the court’s conservative wing, would get to it.
“I’ll let him do it,” Sotomayor said.
Kavanaugh later thanked Sotomayor for the “kind assist.”
The courtroom gallery was packed to the brim with the public and officials like Commerce Secretary Howard Lutnick and Treasury Secretary Scott Bessent.
Bessent said Monday on Fox News he hoped to have a “ringside seat” in the front row. He was seated in the front row of the public gallery, which is in the back half of the courtroom behind members of the Supreme Court Bar.
Bessent gave The Hill a thumbs-up when asked how he thought the argument went.
Several lawmakers also attended, including Sens. Ed Markey (D-Mass.) and Amy Klobuchar (D-Minn.).
“It was good,” Klobuchar told reporters as she left the courtroom.
Three Democratic state attorneys general traveled to the nation’s capital for the argument: Arizona’s Kris Mayes, California’s Rob Bonta and Oregon’s Dan Rayfield.
CEOs of the small businesses suing also sat in, but tickets were sparse. Victor Schwartz, the CEO of wine and spirits importer VOS Selections, one of the lead plaintiffs, only received one reserved seat.
His daughter, Chloe, who runs the business with her father, arrived in the public line at 3:30 a.m. to get a spot.
One unexpected guest Wednesday was comedian John Mulaney, seated in one of the back rows of the public gallery. Katyal previously said he is writing a television show with Mulaney about the Supreme Court.
Updated 5 p.m. EST
