How a skeptical Supreme Court could complicate Trump's tariff agenda
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Various state attorneys general address the press outside the Supreme Court. Photo: Eric Lee/Bloomberg via Getty Images
Supreme Court justices appeared to question President Trump's unilateral tariff powers Wednesday, though their eventual ruling on the matter might not be a simple yes or no.
Why it matters: While trade lawyers and legal experts expect the Supreme Court to complicate Trump's economic agenda, they might not totally undermine it.
What they're saying: There is a possibility that the Supreme Court does not resolve the case "through an opinion simply upholding or striking down the IEEPA tariffs," Dave Townsend, a partner in Dorsey & Whitney's international trade practice, wrote in an email.
- "I think they are likely to find a solution that's not binary in one direction or the other," Ryan Majerus, an attorney in the Office of the U.S. Trade Representative during Trump's first term, tells Axios.
- Majerus says the justices could, for example, rule that Trump can unilaterally impose tariffs under the challenged authority, though only in certain instances, while establishing guardrails around when that might be the case.
- "When they deliberate, they probably will try to find a way to narrow the decision to have a more unified voice in the ultimate outcome," he adds.
Driving the news: The oral arguments on Wednesday lasted almost three hours, nearly twice as long as allotted by the court.
- Even conservatives on the bench, including those appointed by Trump, appeared skeptical of the government's argument that the president could sidestep Congress and enact widespread tariffs.
- But some justices also appeared hesitant to restrain a president's emergency powers, just as they voiced skepticism in granting it.
Zoom in: Justice Neil Gorsuch suggested concern about the high bar for such tariff power to be clawed back from Congress if the Supreme Court granted it, calling it a "serious retrieval problem."
- Justice Brent Kavanaugh later said that there could be some use in the ability for a president to have some latitude in using the powers to impose tariffs.
- He gave the example of Trump's tariffs on India, imposed to pressure the country to cease purchasing oil from Russia amid the ongoing war in Ukraine.
- Kavanaugh said that tool, which he says addresses the most "serious crisis in the world," would be "out the window" if the judges ruled against the government.
The intrigue: The lawsuit filed to block the tariffs argues that the statute enacting them requires an economic emergency — and that the administration's declarations of such fall short.
- Justice Ketanji Brown Jackson seemed skeptical that was the case for a batch of so-called "fentanyl" tariffs on Canada, Mexico and China enacted on the basis of a drug trafficking emergency.
What to watch: Even if the Supreme Court overturns some or all of Trump's tariffs, what happens next is even muddier.
- At one point, Justice Amy Coney Barrett raised the possibility that refunding the tariff money could be "a mess."
- "If they decide that the tariffs are unlawful ... there will be some sort of remand back to lower courts on the remedy piece," Robert Shapiro, a partner at Thompson Coburn, tells Axios.
- The sum of tariff money piles up the longer the Supreme Court takes to decide.
