November 4, 2025
I know you’re focused on the elections today – but I need you to also focus on something huge happening tomorrow.
In the morning – the United States Supreme Court is going to finally be forced to directly confront President Trump and his attempts to expand the power of the president when they answer the question — are President Trump’s tariffs even legal?
Two lower courts have already said no. But tomorrow – in perhaps the biggest test yet of Trump’s executive power– the United States supreme court is going to weigh in.
Tomorrow morning the justices will hear oral arguments for 80 minutes in the combined cases of Learning Resources v Trump and Trump v VOS Selections. These cases are being brought by us importers and 12 states (Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada New Mexico, New York, Oregon and Vermont) who all argue that Trump’s widespread tariffs actions are hurting them financially by increasing their costs and disrupting their operations. They say Trump does not have the legal or constitutional power to just willy nilly impose tariffs at whatever rate he wants on the entire world for as long as he wants. See – trump believes there is a “national emergency” and an “unusual and extraordinary threat” when it comes to the trade deficits and fentanyl and because of those emergencies he believes he has every right to impose whatever tariffs he wants without the consent of congress. To justify this, he’s using a law from the 1970s called the international emergency economic powers act.
Well in late august in a 7-4 ruling, the appeals judges said no. Trump does not have that power under the IEEPA law. They said the law gives the president the power to “regulate importation” during a national emergency, but the word “tariff” does not appear in the law once! The appellate judges said the law does not authorize the president to impose tariffs, duties or taxes. They said the constitution clear. Those powers belong to congress.
Of course Trump vehemently disagrees – he has said that if the supreme court strikes down his unprecedented use of tariffs it would be a “total disaster” for the country. He claims it would make the United States “financially weak.” He has said that this is the most important legal case the justices will hear this term and has even suggested that he’s going to show up at tomorrow’s oral arguments. Whether he actually does – we’ll have to wait and see.
So how are the justices going to decide this case? Well – before I tell you that you need to understand – of course in the past presidents have imposed tariffs on certain countries or on certain industries or certain types of products. Congress has largely delegated tariff authority to the president because it sometimes will coincide with national security or foreign policy – which generally fall in the jurisdiction of the executive branch. But what makes Trump’s tariffs different –is the fact that Trump is taking his tariff policy into a realm we haven’t seen before. He put tariffs on literally every country in the world – and it’s not like a little tariff – in some cases we’re talking blanket tariffs on all imports of 20, 30 or 40% depending on the country. And he imposes these tariffs not only on our adversaries but even our allies. That’s why the states and business organizations are suing. They argue trump is taking this way too far – and if he wants to go this far – he can – but needs to have the approval of congress first.
So – now – let’s talk about how the justices are going to decide this case. They’re going to obviously look at the IEEPA law – and whether it gives any president the power to use tariffs. They’re going to look at whether this trade deficit is actually a national security risk and they’re going to look at whether this is an actual emergency and if it is – whether trump can use that emergency to justify his significant tariff action. They’re going to also look at the constitution and the separation of powers. And they’re going to look whether congress has clearly authorized the president to take an action – like this — that is of economic and political significance…that’s a concept called the major questions doctrine.
The department of justices has argued that the major questions doctrine does not apply in this case and because this is an emergency. They say the president of the United States under his national security powers should be able to take this type of sweeping action to protect the country and he shouldn’t have to get congress’s approval to do it. So far – all the lower courts have disagreed and said yeah – you do.
So what’s going to be interesting tomorrow is when the court weighs all these things — whether the conservative justices will apply the same standard to Trump as they did with President Biden when he was pushing the boundaries of his executive authority by using existing laws to do things like forgive student loans and fight climate change and issue a vaccine mandate for large businesses which Biden argued was an emergency at the time. Back then the conservatives on the court pretty resoundingly said Biden could not do any of those things without the approval of congress. We’ll see if they treat Trump the same way.
Trump posted about tomorrow’s hearing here.
