WASHINGTON ‒ President Donald Trump said he plans to develop a “game two plan” to carry out his tariff agenda after a majority of Supreme Court justices expressed skepticism over his use of emergency powers to impose sweeping tariffs on imported goods.
“We thought we did very well yesterday. We hope that we did,” Trump said on Nov. 6, one day after the Supreme Court held oral arguments in a case challenging the legality of his tariffs. “But I also think we’ll have to develop a ‘game two plan.'”
As a legal basis for most of his tariffs, Trump this year declared a national emergency over the United States’ trade deficit under the 1977 International Emergency Economic Powers Act. Yet Trump’s tariffs appear in jeopardy of being overturned following three hours of debate at the Supreme Court.
All three of the court’s liberal bloc ‒ justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson ‒ expressed clear resistance to upholding Trump’s power to impose emergency tariffs. And at least three of the six conservative justices – Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett – sounded skeptical of the Trump administration’s arguments.
Trump has staked much of his economic and foreign policy agendas on his aggressive use of tariffs. The second-term Republican said it would be “devastating for our country” if the court overrules his administration, but he did not identify other laws he could use to issue the same steep tariffs.
Other potential avenues would be “slow in comparison” to his use of emergency powers under the International Emergency Economic Powers Act, Trump said. He pointed to the additional 100% tariffs he recently threatened on Chinese imports.
“I was able to do it instantaneously when we were threatened by the rare earths, the magnets,” he said, referring to China’s plans for export controls over rare earth minerals.
“It would be a shame. It would be somewhat catastrophic for our country,” Trump said, later arguing he’s used tariffs to settle international conflicts. “Look, I’m ending war because of these tariffs. Americans would have to fight in some of these wars.”
During the Nov. 5 oral arguments, Roberts noted the word “tariff” doesn’t appear in the statute, which has historically been used by presidents to issue sanctions on other countries. Instead, Roberts explicitly said tariffs are a tax ‒ a term Trump and the White House officials have tried to avoid in describing the duties on imports.
Roberts said the power to levy taxes has “always been the core power of Congress,” not the executive branch.
Gorsuch, a first-term Trump appointment, made a similar point, arguing the Constitution designates Congress as the branch of government with the power to set taxes. “The power to reach into the pockets of the American people is just different,” Gorsuch said. “And it’s been different since the founding.”
Trump, asked by a reporter to respond to Roberts’ characterization that tariffs are taxes on Americans, defended his claim that other countries are paying the tariffs.
“It is. It’s coming in because they’ve charged us. You know, those same countries that you talk about are charging us massive amounts of money,” Trump said.
The tariff case arrived at the Supreme Court on appeal from the Trump administration after a federal appeals court ruled in August that most of Trump’s tariffs are illegal. The legal challenge was brought by a group of businesses opposed to the tariffs.
Trump had previously suggested he might attend the Nov. 5 oral arguments in person, but he ultimately passed. Treasury Secretary Scott Bessent watched the proceedings in person instead.
Contributing: Maureen Groppe of USA TODAY
Reach Joey Garrison on X @joeygarrison.
