SCOTUS Tariffs Arguments Were a Bloodbath for Trump

It's ironic - and even entertaining - that the same morning the Felon was trying to deflect any responsibility for the Republican drubbing in Tuesday's elections and had at least one Senate Republican saying the Felon had entered into lame duck status, his attorneys had to argue before a seemingly hostile U.S. Supreme Court pushing the dubious claim that the Felon had the power to inflict his unhinged tariffs on virtually almost every nation in the world.  With Justices Roberts, Gorsuch and Barrett joining with the three liberal justices in showing pronounced skepticism towards the Felon's claims of power over tariffs - despite clear language that such power lay with Congress, the stage may be set for the Court to belatedly rein in the Felon's imperial presidency.  Admittedly, one never knows for certain what the Court may do, but yesterday's hostility by six justices may not bode well for the Felon's power grab.  Both the New York Times and Slate look at the hostile reception received by the Felon's attorneys at the arguments before SCOTUS.  Here are highlights from Slate:

Going into Supreme Court arguments over President Donald Trump’s tariffs on Wednesday, it was genuinely difficult to guess how the justices would rule. Within minutes, that suspense vanished. The hearing was a bloodbath for the Trump administration: Six justices lined up to bash the Justice Department’s defense of the tariffs, barely disguising their annoyance with the government’s barrage of blustery nonsense. At the halfway point, it would’ve saved everyone time had the court just huddled, announced its decision from the bench, and recessed early for lunch. Trump’s signature trade policy—which he expected to raise trillions of dollars for him to use as he wished—looks dead on arrival at SCOTUS. We have spent ten months waiting to see if, and when, this court would set a limit on Trump’s power. Perhaps we should’ve guessed that its extraordinary deference to this president could be outweighed only by its hatred of taxes.

Wednesday’s case, Learning Resources v. Trump, marks a direct challenge to Trump’s unprecedented, unilateral imposition of global tariffs on almost every foreign nation. Although the Constitution vests the tariff power in Congress, not the president, the Justice Department asserts that Congress delegated this authority to the executive branch. Specifically, it cites a 1977 law called International Emergency Economic Powers Act—a strange choice, since that statute does not mention tariffs, customs, duties, or anything else that would imply a license for taxation. Solicitor General John Sauer told SCOTUS that IEEPA permits tariffs because it allows the president to “regulate” foreign “importation” to “deal with” an “unusual and extraordinary threat” abroad. “Regulation,” Sauer argued, includes tariffs, and the word “threat” is capacious enough to include fentanyl smuggling and even our trade deficit (which is, in reality, not a problem at all).

From the outset, a majority of justices weren’t buying what Sauer was selling. He stumbled early by irritating Chief Justice John Roberts with a heavy-handed invocation of Dames & Moore v. Regan, a 1981 decision about IEEPA. Roberts, who may have helped draft the opinion as a clerk, was plainly displeased by Sauer’s distortion of it. “That argument surprises me,” he told Sauer sternly, before reeling off passages from the ruling that undercut Trump’s position—including its warning that the case carries “little precedential value for subsequent cases.” With audible derision, Roberts concluded: “I don’t understand how you can get as much out of Dames & Moore as you’re trying to get.”

The solicitor general whiffed again with Roberts when he argued that the “major questions doctrine” does not apply to Trump’s tariffs. This doctrine bars the president from enacting an initiative of “vast economic or political significance” without explicit congressional authorization. Sauer insisted that it doesn’t apply here because tariffs implicate the president’s “foreign affairs” authority rather than domestic policy, giving him heightened constitutional discretion to do what he pleases. The chief was not convinced.

“It seems that it might be directly applicable,” he lectured Sauer. “You have a claimed source, IEEPA, that had never before been used to justify tariffs. No one has argued that it does till this particular case.” Yet now Trump claims it allows him to “impose tariffs on any product from any country in any amount for any length of time.” The “basis for the claim” of this “major authority,” Roberts concluded, “seems to be a misfit.”

Sauer shot back that tariffs are exempt from such scrutiny because they involve international relations, a core presidential power. But Roberts reminded him that, at bottom, tariffs are an “imposition of taxes on Americans,” something that “has always been the core power of Congress.” Sauer insisted that “foreign producers” shoulder the tariffs, but the chief wasn’t buying it. “Well, who pays the tax?” he asked. “If a tariff is imposed on automobiles, who pays them?”

Justice Neil Gorsuch zeroed in on Sauer’s attempt to quietly transfer Congress’ taxing authority to the executive branch. “You say we shouldn’t be concerned because this is foreign affairs and the president has inherent authority,” Gorsuch said. “If that’s true, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce—for that matter, declare war—to the president?” Could Congress decide that “we’re tired of this legislating business” and “hand it all off to the president?” Sauer backtracked a bit, acknowledging that Congress could not undertake an “abdication” of its duties; the justice wryly told him he was “delighted to hear that.”

Gorsuch followed up with a straightforward query: “Could the president impose a 50 percent tariff on gas-powered cars and autoparts to deal with the unusual and extraordinary threat from abroad of climate change?” Sauer admitted that he probably could, though he added that Trump would not because he rejects the “hoax” of climate change. “I think that has to be the logic of your view,” Gorsuch said sharply. He then asked: If Congress really did give the executive branch absolute freedom over tariffs, “what president is ever going to give that power back” by signing a bill that reins in IEEPA? Sauer hedged, but Gorsuch answered for him: “As a practical matter, in the real world,” Congress “can never get that power back.”

Justice Amy Coney Barrett sounded frustrated by the solicitor general’s hodgepodge of half-formed arguments, too, and cut through them with a poison dart of a question: “Can you point to any other place in the code, any other time in history, where that phrase together—’regulate importation’—has been used to confer tariff-imposing authority?” All Sauer could point to was a predecessor to IEEPA that President Richard Nixon used to impose a 10 percent tariff in 1971. But, as Barrett pointed out, that dubious action was only approved by an “intermediate appellate court,” not SCOTUS. And more to the point, Congress narrowed the president’s powers when it replaced the former statute with IEEPA, in direct response to Nixon’s actions. So, Barrett wondered, is there any other example? Sauer waffled, prompting Justice Sonia Sotomayor to leap in and tell him: “Could you just answer the justice’s question?” (It is never a good sign for your side when Sotomayor and Barrett are teaming up against you.) Finally, the solicitor general had to admit that he had no other examples.

Sotomayor, along with Justices Elena Kagan and Ketanji Brown Jackson, played backup nicely throughout the morning, pressing Sauer on the areas where their colleagues expressed the most skepticism. . . . Sotomayor drilled down on the obviously pretextual nature of the stated “emergencies” at issue, leading Barrett to ask if “every country” truly “needed to be tariffed because of threats to the defense and industrial base.” How does slapping tariffs on Spain and France protect the nation’s security? All Sauer could cite was Executive Order 14257, Trump’s “Liberation Day” tariffs. Barrett, a former law professor, did not seem persuaded that this notoriously sloppy and economically illiterate document was a substitute for reality-based reasoning.

[I]t’s hard to see how this case comes out as anything less than a 6–3 loss for the administration. Roberts, Gorsuch, and Barrett’s questioning of Katyal was far friendlier than their grilling of Sauer, who spoke in a frothy jumble of run-on sentences that was often hard to understand. (Jackson even noted at one point that he was speaking too quickly.) It sounded as if this trio was trying to figure out how they’ll rule against Trump: Must they invoke the major questions doctrine, as Gorsuch suggested to Katyal? Or can they rest a decision on the plain text alone?

More questions remain: What happens to the $200 billion in tariffs that the government has already collected? Will the court order it paid back, or only issue relief moving forward (or perhaps merely to the specific plaintiffs in this case, whom the government promised to reimburse should it lose)? Can the justices rush out an opinion before that figure balloons higher? Will Trump try to issue new tariffs under narrower statutes that do authorize them, or will he bristle at the constraints they impose? But all that can wait another day. For now, it’s just a comfort to watch the Republican-appointed justices rediscover principle after ten months of bowing to Trump. Are they motivated by widespread hostility toward tariffs among the corporate interests they typically favor? Maybe. But who cares? What’s important is that, for the first time in a long time, they have finally found a line they won’t let Donald Trump cross.