For more than two and a half hours, the nine justices—and three lawyers—debated whether Trump overstepped his authority when he imposed sweeping global tariffs, ostensibly to tackle national emergencies tied to trade deficits and illegal fentanyl imports.
Justices from across the ideological spectrum expressed doubts that Trump’s tariffs are authorized by a 1977 law that gives the president the power to regulate imports. Four of the justices—including one of Trump’s own appointees—voiced outright hostility to the administration’s position. At least two others took a more measured tone but nonetheless expressed misgivings about the tariffs and seemed more likely than not to rule against them.
Two justices who asked sharp questions of both sides were more difficult to read. Only one member of the court, Justice Samuel Alito, appeared clearly receptive to upholding the tariffs, but even he took issue with some aspects of Trump’s legal position.
The Wall Street Journal’s analysis of each justice’s apparent views is based on their most revealing comments and questions during Wednesday’s hearing. Here are the key moments when they offered some clues into their thinking.
Chief Justice John Roberts wasn’t the most vocal during the hearing, but one early exchange with Solicitor General John Sauer was telling. Roberts, noting the extraordinarily broad scope of Trump’s tariffs, suggested that such a momentous policy needed express authorization from Congress.
That idea—that big policies from the executive branch must be tied to clear statutory language—is known as the “major questions doctrine.” During the Biden administration, Roberts invoked that doctrine in rulings that struck down a student-loan-forgiveness plan and an initiative to address climate change.
On Wednesday, the chief suggested there is a “misfit” between the sweeping tariff authority Trump has claimed and the vague language in the relevant statute.
The most dramatic part of the hearing was a 10-minute period in which Justice Neil Gorsuch aggressively grilled Sauer about the Constitution’s separation of powers. Gorsuch was the first of three justices whom Trump appointed to the high court in his first term, and he is one of the court’s most conservative members.
But Gorsuch noted emphatically that the power to tax—and, therefore, to tariff—belongs to Congress, not the president.
Sauer responded that Congress can—and did—delegate some of that power to the president to deal with emergencies originating abroad. But Gorsuch was unconvinced. Surely a pliant Congress couldn’t simply hand over core powers—like the power to declare war—to the executive, he said. And, Gorsuch added, the Supreme Court should be wary about interpreting a statute to delegate so much power, because it would be difficult for Congress to get that power back.
Toward the end of the hearing, in an exchange with Oregon Solicitor General Benjamin Gutman, one of the lawyers challenging the tariffs, Gorsuch reiterated the point. “The power to reach into the pockets of the American people,” he said, “is just different.”
Justice Amy Coney Barrett, another Trump appointee, was widely seen coming into the argument as a pivotal vote in the case. She was the first justice to ask Sauer whether worldwide tariffs are a proportional response to the trade-deficit emergency that Trump has declared.
“I could see it with some countries,” she allowed, but voiced skepticism that the trade deficit justified the “across the board” tariffs that Trump has imposed.
Barrett also appeared dubious about Trump’s interpretation of the 1977 law at the center of the case. Though that law allows regulation of imports, it never mentions the T-word. Barrett said that language—regulate imports—has rarely, if ever, been used in similar contexts to “confer tariff-imposing authority.”
All three of the court’s liberal justices telegraphed early on that they are likely to rule against Trump. Justice Sonia Sotomayor, the senior member of the liberal bloc, led the way.
Like Gorsuch, she emphasized that tariffs are taxes and thus ordinarily fall within Congress’s jurisdiction. And she pointedly noted that the Supreme Court rejected President Joe Biden’s efforts to invoke emergency authorities to enact his own sweeping economic policies. Biden, for instance, tried to justify his student-loan-cancellation plan as a response to the Covid pandemic. But the high court—over the dissent of Sotomayor and the other two liberals—struck it down.
At one point, Sauer sought to play down the amount of authority he was claiming for the president. Trump, he said, can only impose tariffs under the 1977 law if he first declares a formal emergency.
But Justice Elena Kagan shot back. “It turns out,” she said, “we’re in emergencies…all the time.” It seemed to be a backhanded allusion to Trump’s habit in his second term of invoking purported emergencies to advance his policy objectives.
Justice Ketanji Brown Jackson asked several times about the legislative history of the 1977 law at issue, known as the International Emergency Economic Powers Act, or Ieepa. Contrary to Sauer’s assertion that the law delegated broad authority to the president, Jackson contended that Ieepa was actually intended to narrow the scope of a predecessor statute.
Justice Samuel Alito, a stalwart conservative, was the only justice whose questions suggested he was inclined to side with Trump.
Speaking to Neal Katyal, who represented small businesses opposed to the tariffs, Alito emphasized the need for presidents to retain wide latitude to respond to foreign emergencies. He posed a hypothetical question about a foreign adversary that was “heavily dependent” on trade with the United States. Could the president impose tariffs to try to avoid an all-out war?
Katyal’s answer: No. The president could impose embargoes or quotas on imports, but not tariffs, the lawyer contended.
Justice Brett Kavanaugh, often a critical vote in politically charged cases, voiced qualms about both sides’ positions, leaving his ultimate views unclear.
At one point, he noted that no president before Trump had ever tried to use Ieepa to impose tariffs. If the statute really gave presidents that authority, Kavanaugh seemed to suggest, other presidents would have been expected to harness it.
But at other points in the hearing, Kavanaugh latched onto Alito’s comments about the president’s latitude to deal with emergencies. Before he became a judge, Kavanaugh worked in President George W. Bush’s administration, and on the bench he frequently favors a strong executive.
On Wednesday, he openly worried about shrinking “the president’s suite of tools” for responding to international crises.
Justice Clarence Thomas seldom gets into extended or combative exchanges with lawyers arguing before the court; he tends to ask straightforward questions inviting advocates to elaborate on aspects of their arguments.
Wednesday’s hearing was no different. He asked the lawyers to discuss the major questions doctrine and a related legal principle known as “non-delegation.” Perhaps his most interesting moment came when he posed a hypothetical question about using tariffs to respond to a foreign nation that was holding Americans hostage.
Photos: Bloomberg News (Trump); Reuters (justices)
Write to James Romoser at james.romoser@wsj.com, Kara Dapena at kara.dapena@wsj.com and Noah Higgins-Dunn at noah.higgins-dunn@wsj.com
