President Donald Trump’s tariff policy is facing its toughest test yet with the U.S. Supreme Court hearing oral arguments in a high-stakes case over whether he can use emergency powers to impose sweeping tariffs without congressional approval.
Trump’s Tariffs
Back on April 2, the president declared it “Liberation Day” in a Rose Garden speech during which he invoked a national emergency to place tariffs on dozens of nations. The initial plan included setting a 10 percent base tariff on nearly all imports beginning on April 5 and threatening higher reciprocal tariffs on dozens of nations based on their trade agreements with the United States.
The announcement spooked global markets, which led to delay in the implementation to allow trading partners more time to negotiate new trade deals. Over the last several months, President Trump has met with an array of international leaders – most recently on his diplomatic tour through Asia – and announced several new trade deals.
Meanwhile, a coalition of Democrat-run states and small businesses filed lawsuits against the administration, arguing the president lacks the Constitutional authority to impose tariffs. The legal fights have been winding their way through lower courts. And on Wednesday, the issue reached the Supreme Court in a consolidated case called Learning Resources v. Trump.
As AM Update guest host Mark Halperin reported on Thursday’s show, the question now in front of the high court is not whether tariffs are smart policy, but whether the president can use the 1977 International Emergency Economic Powers Act (IEEPA) to bypass Congress and impose tariffs on his own.
Brian Kelsey, a senior attorney at the American First Policy Institute who filed an amicus brief in support of the Trump administration, spoke to AM Update about the law the Supreme Court is being asked to rule on.
The Central Question
As Kelsey explained, the IEEPA “gives the powers to the president to do a lot of different things as long as he declares an emergency.” He noted that “no one is really questioning the emergencies he has declared,” rather they are questioning if the statute “give[s] the power to issue a tariff among its other powers?”
He said the IEEPA is filled with a lot “broad words” that “give sweeping powers to the president.” Those include the powers to nullify, void, prevent, or prohibit goods from coming into the country as long as the president has issued an emergency. There is another phrase that says the commander-in-chief has the “to regulate importation,” and that, Kelsey added, is what this case hinges on.
“If ‘to regulate importation’ means to issue a tariff, then the president wins,” he posited. “And if it doesn’t, then the president loses.”
The Nondelegation Doctrine
At the heart of the matter is the nondelegation doctrine of the U.S. Constitution, which stipulates that Congress cannot cede its legislative powers to other branches of government or administrative agencies.
“The non-delegation doctrine just says that certain powers that are given to Congress under the Constitution, like the power to tax, are given exclusively to Congress, and it can’t delegate or give that power away to other parties, including the president,” Kelsey explained. “But I think that the Trump administration was very strong in pushing back that the power to tariff, in this instance, is not exactly like a power to tax. It’s much more so the power to regulate imports altogether.”
In his view, the Trump administration’s position is straightforward. “The arguments are, number one, that this law, IEEPA, gives the president the power to issue tariffs because it encompasses a whole host of powers, including the power to flat out prohibit goods from coming into the country altogether,” Kelsey said. “Also, they are arguing that it is really a red herring to look for the word ‘tax’ in the middle of this law because the tariff is not exactly the same thing as a tax.”
To that point, Kelsey noted that President Trump “has been very clear that he is issuing these tariffs so that he can get better deals from other countries and not just so that he can only get the tax revenue that happens to come along with them.”
Where the Justices Stand
Solicitor General John Sauer argued on behalf of the Trump administration on Wednesday, and he faced tough questions from the justices. One of the sharpest exchanges came from Trump-appointed Justice Neil Gorsuch, who asked Sauer where the administration draws the line between what the president can do and what Congress can do.
GORSUCH: So, could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit? To lay and collect duties as he sees fit?
SAUER: We don’t assert that here. That would be a much harder case.
GORSUCH: I want you to explain to me how you draw the line. Because you say we shouldn’t be concerned because this is foreign affairs and the president has inherent authority, and so delegation off the books, more or less. And 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?
SAUER: We don’t contend that he could do that.
GORSUCH: Why not?
SAUER: Well, because we’re dealing with a statute, again, that has a whole different–
GORSUCH: General, I’m not asking about the statute. I’m asking for your theory of the Constitution.
Kelsey believes that line of questioning could signal Gorsuch will not side with the Trump administration. “Well, Justice Gorsuch is a big fan of the nondelegation doctrine and he clearly wants to go in that direction in this case and perhaps might want to come down against President Trump,” he predicted.
But he is not sure that will have an impact on the final ruling. “Although he is one of the three normally reliable votes for the administration, he seems to be replaced in this particular case by Justice [Brett] Kavanaugh who is clearly very solidly behind President Trump having the power to issue tariffs in this case,” Kelsey added. “So, I think the 3-3-3 split remains. It’s just that perhaps Justices Gorsuch and Kavanaugh have traded places in this particular case.”
If Kelsey is correct that Justices Clarence Thomas and Samuel Alito will be joined by Kavanaugh in supporting Trump and the three liberal justices will be on the opposing side, that leaves Chief Justice John Roberts, Justice Amy Coney Barrett, and Gorsuch in the middle. While he said the “swing votes very much held their cards in their vests,” he did see “some very positive signs from Justice Barrett” for the Trump team.
“So, I’m hopeful it will be a win for the president, but we’ll just have to wait and see,” Kelsey concluded. “There are some serious constitutional questions at issue, and I know the court wants to do a good job in ensuring that the Constitution is upheld.”
A decision is expected by June, though it could come earlier.
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