Supreme Court Today: Trump’s Tariff’s Appear to Be In Trouble
Gorsuch, Coney-Barret, and Roberts Seem Ready to Jump from Trump's Ship on this one.
MS Note: The full 213 page transcript of the Supreme Court hearing today on Trump’s Teriffs is available online to read here. Following is a readout on what was a very interesting hearing that did not go particularly well for Trump.
The Supreme Court heard consolidated challenges to President Trump’s global tariffs—Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections—testing whether the International Emergency Economic Powers Act (IEEPA) lets a president slap broad tariffs on imports, and, if so, whether that delegation is unconstitutional. The upshot: a majority of the Court (possibly as many as 6) sounded skeptical that IEEPA authorizes this kind of sweeping tariff program. The day’s most consequential voices belonged to Justices Neil Gorsuch and Amy Coney Barrett—both pressing on limits and alternatives—which is why many observers pegged them as the likely deciding votes. Additionally, Chief Justice John Roberts also telegraphed real doubts. So in addition to the threee liberal justices who seem certain to vote against Trump, Gorsuch, Coney Barret, and Roberts also look likely to go in that direction – leaving Kavanaugh, Alito, and Thomas as the only clear “likely for Trump” votes. That’s the topline takeaway – there’s a lot more to unpack. Here’s a deeper look.
The exchanges that mattered (and what they signal)
Gorsuch: “One-way ratchet” and the illusion of congressional checks
Gorsuch zeroed in on the practical irreversibility of handing tariff power to the executive under IEEPA. If Congress tries to claw it back, the president can veto the joint resolution—so in practice, Congress “can’t get this power back once it’s handed it over,” a “one-way ratchet toward the gradual but continual accretion of power in the executive branch.” That separation-of-powers worry is a direct hit on the government’s theory.
Barrett: Licenses and embargoes, yes; revenue-raising tariffs, no
Barrett worked to draw a clean line: IEEPA plainly supports classic sanctions tools (blocking orders, licensing, export controls). But she repeatedly pressed challengers on whether those tools are categorically different from tariffs that raise revenue from Americans. Her questions suggest she’s comfortable with licensing regimes under IEEPA while viewing tariffs as a bridge too far without explicit congressional say-so, since it collects revenue from Americans and the law is very specific that Congress has to approve that.
Roberts: “If a tariff is imposed on automobiles, who pays them?”
Roberts’ plain-English probe—“who pays” a tariff—nudged the Solicitor General to admit the economic incidence lands domestically, reinforcing challengers’ theme that tariffs are taxes on Americans. That framing undermines the idea that tariffs are just another “regulatory” knob under IEEPA.
Where the center-right sounded likely to land
Neil Gorsuch: Strongly skeptical of the government; focused on real-world veto dynamics and power drift to the executive. He appeared poised to vote against IEEPA-tariffs.
Amy Coney Barrett: Seeking a principled boundary—IEEPA supports embargoes/licensing, but not duties. She seems likely to reject tariffs under IEEPA while preserving classic sanctions authority.
John Roberts: The “who pays” exchange telegraphed that he sees tariffs as taxes; he seems looking toward a narrow statutory ruling that avoids a non-delegation earthquake but blocks tariffs here.
Second-tier reads: who else might still be in play
Brett Kavanaugh: He pressed consistency with trade precedents (e.g., Algonquin) and explored whether license fees and duties are “economic equivalents,” but he didn’t plant a flag for limitless tariff power. He’s the most fluid vote on the right after Barrett—open to the tools IEEPA clearly covers, less clearly on tariffs.
Samuel Alito: Probed the elasticity of “emergency” statutes and compared IEEPA to broad authorizations like the 2001 AUMF. The tone was exploratory rather than full-throated for Trump; he repeatedly returned to what, exactly, was delegated here.
Clarence Thomas: Pressed history and whether challengers’ line would also imperil embargoes/quotas—invoking a view that embargo-style controls are within IEEPA even if revenue-raising tariffs are not. Less boosterism than calibration.
Katyal Landed Some Good Punches
Neal Katyal (private parties) led with “tariffs are taxes,” then walked the Court through text, history, and structure: Congress has always delegated tariff power explicitly and with limits; IEEPA is a sanctions statute, not a tax statute. He also echoed the “one-way ratchet” concern the conservative middle was already circling.
Solicitor General D. John Sauer argued that IEEPA’s broad verbs (“regulate”) encompass tariffs during a national emergency and pointed to political checks (Congressional termination of emergencies). The problem—made vivid by Gorsuch—is that the veto dynamic makes those checks largely illusory.
Likely paths to a decision
Plain-text narrow win for challengers. The Court holds that IEEPA doesn’t authorize across-the-board tariffs; it preserves IEEPA for blocking/embargo/licensing and leaves non-delegation for another day. This is the path Barrett’s questions map out.
Major-questions backstop. Even if “regulate” could stretch, remaking the tariff system is a “major question” requiring a clear statement Congress never provided. (SCOTUSblog’s same-day report reads the room similarly.)
Split the baby on tools. The Court lists what IEEPA covers (asset blocks, export licenses, targeted embargoes) and says “tariffs” are different because they raise revenue—placing them outside IEEPA absent explicit authorization. That would command a broad coalition without detonating trade authorities elsewhere.
Bottom Line — Call it a Bad Day For Trump’s Tariffs
Various reasons - here they are:
Tax vs. sanction. Multiple justices treated tariffs as taxes that Americans pay, not mere foreign-affairs “regulation.” That undercuts the government’s core move to tuck tariffs inside IEEPA’s sanctions toolkit.
Separation of powers gravity. The “one-way ratchet” line crystallized the institutional cost of a government win—Congress would, functionally, have ceded a tax lever to the White House forever.
A workable limiting principle exists. Barrett (and to a degree Kavanaugh) kept returning to a manageable line: preserve traditional IEEPA sanctions; require congressionally-conferred tariff authority for duties. That gives the Court a narrow, formalist way to rule.
Reporting basically good news is unsettling. This could still go sideways but honestly, when you read the transcript — it’s pretty clear where everyone is leaning and what they are thinking. Anyway — thanks for sticking with me. Another pretty meaty day. Thanks for supporting!
Dear Typo Squad -- I caught the two miss-spellings of "Coney" as "Comey", thank you very much! Fixed it on the web version. My bad. Slip of the brain. But at least I caught it myself! ;-)
What I found to be particularly frustrating was the absence of a challenge to the definition of emergency. Obviously congress gives the executive emergency powers when and only if there is an emergency . The dispute over trade deficits being an existential threat is a policy debate that may have merit but it cannot possibly be an emergency since there have been trade deficits ( excluding services) for decades. Trump is obviously lying and attempting to use a false emergency to claim powers he doesn’t have. It seems the most obvious common sense issue was not addressed at least in what I saw. Instead it was once again like an English semantics exercise over verbs and nouns.
I haven’t read the entire transcript however.