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WASHINGTON — The Supreme Court’s conservatives face a test of their own making this week as they decide whether President Trump had the legal authority to impose tariffs on imports from nations across the globe.
At issue are import taxes that are paid by American businesses and consumers.
Small-business owners had sued, including a maker of “learning toys” in Illinois and a New York importer of wines and spirits. They said Trump’s ever-changing tariffs had severely disrupted their businesses, and they won rulings declaring the president had exceeded his authority.
On Wednesday, the justices will hear their first major challenge to Trump’s claims of unilateral executive power. And the outcome is likely to turn on three doctrines that have been championed by the court’s conservatives.
First, they say the Constitution should be interpreted based on its original meaning. Its opening words say: “All legislative powers … shall be vested” in Congress, and the elected representatives “shall have the power to lay and collect taxes, duties, imposes and excises.”
Second, they believe the laws passed by Congress should be interpreted based on their words. They call this “textualism,” which rejects a more liberal and open-ended approach that included the general purpose of the law.
Trump and his lawyers say his sweeping “Liberation Day” tariffs were authorized by the International Economic Emergency Powers Act, or IEEPA.
That 1977 law says the president may declare a national emergency to “deal with any unusual and extraordinary threat” involving national security, foreign policy or the economy of the United States. Faced with such an emergency, he may “investigate, block … or regulate” the “importation or exportation” of any property.
Trump said the nation’s “persistent” balance of payments deficit over five decades was such an “unusual and extraordinary threat.”
In the past, the law has been used to impose sanctions or freeze the assets of Iran, Syria and North Korea or groups of terrorists. It does not use the words “tariffs” or “duties,” and it had not been used for tariffs prior to this year.
The third doctrine arose with Chief Justice John G. Roberts Jr. and is called the “major questions” doctrine.
He and the five other conservatives said they were skeptical of far-reaching and costly regulations issued by the Obama and Biden administrations involving matters such as climate change, student loan forgiveness or mandatory COVID-19 vaccinations for 84 million Americans.
Congress makes the laws, not federal regulators, they said in West Virginia vs. Environmental Protection Agency in 2022.
And unless there is a “clear congressional authorization,” Roberts said the court will not uphold assertions of “extravagant statutory power over the national economy.”
Now all three doctrines are before the justices, since the lower courts relied on them in ruling against Trump.
No one disputes that the president could impose sweeping worldwide tariffs if he had sought and won approval from the Republican-controlled Congress. However, he insisted the power was his alone.
In a social media post, Trump called the case on tariffs “one of the most important in the History of the Country. If a President is not allowed to use Tariffs, we will be at a major disadvantage against all other Countries throughout the World, especially the ‘Majors.’ In a true sense, we would be defenseless! Tariffs have brought us Great Wealth and National Security in the nine months that I have had the Honor to serve as President.”
Solicitor Gen. D. John Sauer, his top courtroom attorney, argues that tariffs involve foreign affairs and national security. And if so, the court should defer to the president.
“IEEPA authorizes the imposition of regulatory tariffs on foreign imports to deal with foreign threats — which crucially differ from domestic taxation,” he wrote last month.
For the same reason, “the major questions doctrine … does not apply here,” he said. It is limited to domestic matters, not foreign affairs, he argued.
Justice Brett M. Kavanaugh has sounded the same note in the past.
Sauer will also seek to persuade the court that the word “regulate” imports includes imposing tariffs.
The challengers are supported by prominent conservatives, including Stanford law professor Michael McConnell.
In 2001, he and John Roberts were nominated for a federal appeals court at the same time by President George W. Bush, and he later served with now-Justice Neil M. Gorsuch on the U.S. 10th Circuit Court of Appeals in Denver.
He is the lead counsel for one group of small-business owners.
“This case is what the American Revolution was all about. A tax wasn’t legitimate unless it was imposed by the people’s representatives,” McConnell said. “The president has no power to impose taxes on American citizens without Congress.”
His brief argues that Trump is claiming a power unlike any in American history.
“Until the 1900s, Congress exercised its tariff power directly, and every delegation since has been explicit and strictly limited,” he wrote in Trump vs. V.O.S. Selections. “Here, the government contends that the President may impose tariffs on the American people whenever he wants, at any rate he wants, for any countries and products he wants, for as long as he wants — simply by declaring longstanding U.S. trade deficits a national ‘emergency’ and an ‘unusual and extraordinary threat,’ declarations the government tells us are unreviewable. The president can even change his mind tomorrow and back again the day after that.”
He said the “major questions” doctrine fully applies here.
Two years ago, he noted the court called Biden’s proposed student loan forgiveness “staggering by any measure” because it could cost more than $430 billion. By comparison, he said, the Tax Foundation estimated that Trump’s tariffs will impose $1.7 trillion in new taxes on Americans by 2035.
The case figures to be a major test of whether the Roberts court will put any legal limits on Trump’s powers as president.
But the outcome will not be the final word on tariffs. Administration officials have said that if they lose, they will seek to impose them under other federal laws that involve national security.
Still pending before the court is an emergency appeal testing the president’s power to send National Guard troops to American cities over the objection of the governor and local officials.
Last week, the court asked for further briefs on the Militia Act of 1908, which says the president may call up the National Guard if he cannot “with the regular forces … execute the laws of the United States.”
The government had assumed the regular forces were the police and federal agents, but a law professor said the regular forces in the original law referred to the military.
The justices asked for a clarification from both sides by Nov. 17.
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David G. Savage
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