Key Justices Cast a Skeptical Eye on Trump’s Tariffs

 

Key Justices Cast a Skeptical Eye on Trump’s Tariffs

 

The Supreme Court is considering whether the president acted legally when he used a 1977 emergency statute to impose tariffs on scores of countries.

 

Ann E. Marimow

By Ann E. Marimow

Reporting from Washington

https://www.nytimes.com/2025/11/05/us/politics/supreme-court-trump-tariffs.html

Nov. 5, 2025

 

A majority of Supreme Court justices on Wednesday asked skeptical questions about President Trump’s use of emergency powers to impose tariffs on imports from nearly every U.S. trading partner, casting doubt on a centerpiece of the administration’s second-term agenda.

 

The outcome of the case, which could be decided within weeks or months, has immense economic and political implications for U.S. businesses, consumers and the president’s trade policy.

 

Several members of the court’s conservative majority, including Justice Amy Coney Barrett and Justice Neil M. Gorsuch, joined the liberal justices in sharply questioning the Trump administration’s assertion that it has the power to unilaterally impose tariffs without congressional approval.

 

Justice Barrett, who is seen as a key vote, questioned the scope of Mr. Trump’s reciprocal tariffs, which she described as “across the board.”

 

“Is it your contention that every country needed to be tariffed because of threats to the defense and industrial base?” she asked a lawyer for the administration. “Spain? France? I mean, I could see it with some countries but explain to me why as many countries needed to be subject to the reciprocal tariff policy.”

 

Several justices also noted that Mr. Trump was the first president to claim that the 50-year-old emergency statute allowed the president to impose tariffs.

 

At issue is Mr. Trump’s use of the International Emergency Economic Powers Act of 1977 to unilaterally set tariffs on imports from more than 100 countries in an attempt to reduce the trade deficit and ignite more manufacturing in the United States.

 

D. John Sauer, the U.S. solicitor general, told the justices that Congress intentionally conferred broad powers on the president to address emergencies. The case, he said, is not about the “power to tax,” which the Constitution reserves for Congress, but the ability to regulate foreign commerce, where he said the president has wider latitude.

 

The fact that tariffs raise revenue, he said, is “only incidental.”

 

That did not appear to satisfy the three liberal justices, including Justice Sonia Sotomayor, who said: “You want to say tariffs are not taxes, but that’s exactly what they are. They are generating money from American citizens.”

 

In the lead-up to Wednesday’s argument, Mr. Trump called the case “literally, LIFE OR DEATH for our Country,” underscoring the degree to which he views it as critical to his trade and foreign policies. Without the emergency power, he said on social media, the country “is virtually defenseless against other Countries who have, for years, taken advantage of us.”

 

Hours after the argument concluded, Mr. Trump bragged at an event in Florida about the revenue that tariffs have raised, saying they have helped bring the government “hundreds of billions of dollars.”

 

The tariffs were challenged in court by a dozen states, in addition to small businesses, including a wine importer and an educational toy manufacturer. Hundreds of small businesses separately joined court filings that call Mr. Trump’s actions unlawful, saying the tariffs have forced them to raise prices and scale back staffing.

 

Until now, the Supreme Court’s conservative majority has been largely receptive to Mr. Trump’s claims of presidential authority, but it has ruled largely on emergency orders that have been technically temporary. The tariffs case, which is considered a legal tossup by experts, is the first time in Mr. Trump’s second term that the justices will address the underlying legal merits of a major administration priority in a more lasting way.

 

The key question for the justices on Wednesday was whether the president exceeded his authority when he used the 1977 emergency statute. Past presidents have relied on the law to impose sanctions or embargoes on other countries, but Mr. Trump is the first to use it to impose tariffs.

 

Justices Gorsuch and Barrett, both nominees of Mr. Trump, raised separation-of-power concerns.

 

They suggested the administration’s position could represent an unconstitutional delegation of legislative power to the executive branch that would be difficult for Congress to reclaim. Justice Gorsuch warned of “a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives” in Congress.

 

Chief Justice John G. Roberts Jr., who is often in the majority in high-profile cases, asked tough questions of both sides, but sounded most emphatic when questioning the Trump administration’s lawyer.

 

He joined the liberal justices in emphasizing that the power to tax is a core congressional authority, but said the president has the authority to conduct foreign affairs and tariffs are a “foreign-facing tax.” The chief justice noted that the tariffs had been “quite effective in achieving particular objectives.”

 

Almost immediately after returning to the White House for a second term in January, Mr. Trump announced tariffs on goods imported into the United States from China, Canada and Mexico, saying the levies were a punishment for those nations’ failing to stop the flow of fentanyl. In April, he expanded the tariffs to imports on goods from more than 100 trading partners, saying they were needed to address trade deficits with the rest of the world.

 

Under the law, the president has the authority to take certain steps in response to a national emergency 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” the “importation” of foreign property, which the administration argues allows Mr. Trump to levy tariffs.

 

The challengers counter that the word “regulate” does not encompass the power to impose tariffs. The statute itself does not include the words “tariffs,” “taxes” or “duties.”

 

Neal Katyal, the lawyer representing the small businesses, told the justices that “it’s simply implausible” that Congress had “handed the president the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country, at any and all times.”

 

Justices Brett M. Kavanaugh and Samuel A. Alito Jr. had the toughest questions for Mr. Katyal and Benjamin N. Gutman, the solicitor general of Oregon, who argued on behalf of the states, suggesting some openness to the administration’s interpretation of its emergency powers. Justice Kavanaugh expressed concern about taking tariffs away from the president’s “suite of tools” to deal with economic emergencies.

 

Why, he asked, would Congress give the president the authority to shut down trade — which the challengers acknowledged the law allows — but not to take the less sweeping step of imposing even a modest 1 percent tariff? That, Justice Kavanaugh said, appeared to support the government’s claim, creating an “odd doughnut hole in the statute.”

 

“It’s not a doughnut hole — it’s a different kind of pastry,” responded Mr. Gutman, prompting laughter in the courtroom.

 

If the justices were to rule against Mr. Trump, the administration says it would be forced to unwind trade deals with other countries. The government might also have to pay billions in refunds to importers.

 

The result could lead to economic ruin akin to the Great Depression, an interruption of trade negotiations and diplomatic embarrassment, Mr. Sauer has told the justices.

 

But even with a loss, the president would have other options. He could rely on different statutes to impose duties, but on a more limited basis and with less flexibility. The administration has proposed or issued tariffs that cover roughly a third of U.S. imports under a nonemergency provision related to national security, known as Section 232.

 

In a sign of how pivotal the case is to the administration’s agenda, Mr. Trump had talked publicly about attending Wednesday’s argument before reversing course on Sunday, saying he would stay away to avoid becoming a distraction.

 

Instead, Treasury Secretary Scott Bessent, Commerce Secretary Howard Lutnick and the U.S. trade representative, Jamieson Greer, watched the argument from the front row of the public gallery. Also in attendance were several senators, including Amy Klobuchar of Minnesota and Edward J. Markey of Massachusetts, both Democrats, and Mike Lee of Utah, a Republican.

 

During the nearly three-hour argument, the justices grappled with a doctrine favored by the conservative legal movement. The Supreme Court’s conservative majority repeatedly relied on the “major questions doctrine” to invalidate many of President Joseph R. Biden Jr.’s key initiatives, including his student loan forgiveness program. The doctrine says presidential initiatives with “vast economic or political significance” must be clearly authorized by Congress.

 

Chief Justice Roberts suggested to the Trump administration’s lawyer that the same principle would apply to a president trying to invoke a statute for the first time to impose tariffs on “any product from any country for any amount for any length of time.”

 

“It does seem like that’s major authority and the basis for the claim seems to be a misfit,” he said. “So why doesn’t it apply?”

 

Mr. Sauer agreed that the tariffs amounted to a “major power,” but contended that the statute explicitly provided such authority to address major problems in an emergency.

 

 

While this set of the president’s tariffs seemed in peril by the end of the argument, it was not clear on what grounds a majority of the justices might rule or how quickly. A divided outcome could lead to multiple opinions, which could delay an announcement of the court’s decision.

 

The case reached the Supreme Court after three lower courts concluded the tariffs were unlawful.

 

In August, the U.S. Court of Appeals for the Federal Circuit ruled 7 to 4 that the emergency statute did not authorize the sweeping tariffs while declining to decide whether the statute might allow Mr. Trump to impose more limited duties.

 

“Whenever Congress intends to delegate to the president the authority to impose tariffs, it does so explicitly,” the appeals court’s majority said.

 

In dissent, Judge Richard G. Taranto, who was appointed by President Barack Obama, said that the statute should be read to give presidents more flexibility to respond to emergencies and that it represented “an eyes-open congressional grant of broad emergency authority in this foreign affairs realm.”

 

Reporting was contributed by Aishvarya Kavi, Abbie VanSickle, Adam Liptak and Tony Romm.

 

Ann Marimow covers the Supreme Court for The Times from Washington.