November 5, 2025
President Trump’s entire tariff policy may be in trouble.
The supreme court heard almost three hours of oral arguments this morning in a case involving whether the president of the United States –not just President Trump – but any president — has the constitutional or even statutory authority to just willy nilly impose whatever tariffs he wants, whenever he wants for as long as he wants without the consent of congress.
I listened to the entire oral argument and obviously – the liberal justices were pushing back hard – but it was really three of the conservative justices Barrett, Gorsuch and chief justice Roberts — who appeared extremely skeptical of the Trump administration’s argument that the trade deficit and fentanyl is so grave an emergency that president trump has every right under the International Emergency Economic Powers Act – to just tariff the entire world and congress does not have to officially delegate that power to him — and the courts do not even have the power to question the president’s action. It was justice Neil Gorsuch who really hammered Trump’s solicitor general using the Trump administration’s logic with a hypothetical about congress handing over the power to start a war to the president and that actually got Trump’s solicitor general to admit that well – maybe congress does have to specifically delegate this extraordinary use of tariff power to trump and he can’t just do it on his own.
Side note – no I did not speed up Trump’s solicitor general’s comments. He was literally talking a mile a minute during today’s oral argument. I mean – I know I talk fast but he was really putting me to shame. In fact, justice Jackson commented on how fast he was talking.
Ok – back to the substance. The Supreme Court was really focused on the meaning of specific words. They focused on the specific language in IEEPA. That law from 1977 gives the power to regulate importation to the president during an emergency– but the law never mentions the word “tariff” once. And several of the justices pointed out that no president since that law was enacted in 1977 has used IEEPA to impose tariffs. Let alone massive tariffs on the entire world. The other word Trump’s solicitor general focused on was tariffs. He says the Trump administration does not view tariffs as a tax. Instead – they see it as an important bargaining power the president is using to bring all these countries to the negotiating table. But chief justice Roberts – took some issue with that.
Yes – you heard that correctly — trump’s solicitor general said to the United States Supreme Court that there is no evidence in the record that tariffs are being paid for by the American people. He just said those tariffs are being paid by the foreign countries or foreign importers. That’s of course not what the federal reserve says. But that’s a conversation for another day.
One last piece of this case that you need to understand. If the Supreme Court decides that Trump’s sweeping reciprocal tariffs are unconstitutional. The lower courts have said the Trump administration needs to issue tariff refunds to everyone who has paid them. While justice Amy Coney Barrett was skeptical of Trump’s sweeping use of tariffs – she was equally skeptical about the refund part of this.
So the last thing I want to address is when the supreme court is going to actually rule on this case. Now normally a ruling in a huge case like this would come at the very end of the term in late June…but the court took this case on an emergency basis….so it is possible that we could get a ruling within the next month or two. I’ll keep you posted.
Watch the full oral argument here.
