Wednesday’s Supreme Court oral arguments on President Donald Trump’s use of an emergency declaration to implement steep tariffs globally saw liberal justices — and a former Obama-era acting solicitor general defending the plaintiffs — embrace in a somewhat trollish manner two legal theories most often deployed by the court’s right-wing justices: so-called major questions and nondelegation doctrines.
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
The first of two conservative theories to receive significant attention during oral arguments, the major issues doctrine, holds that in the event a president issues a policy of what the court characterizes as “vast economic and political significance,” the law used must explicitly grant those powers to the executive branch. It has historically been used to obstruct Democratic policies and has been applied especially frequently to oppose many of former President Joe Biden’s priorities, including student loan forgiveness. Then, liberal justice Elena Kagan denounced the use of the doctrine as a “danger to the democratic order.” Now his political allies on the Court have tried to use him to enlighten their conservative colleagues about what the Court’s positions in past cases should mean for it.
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Sotomayor does not understand any argument, she said, “that foreign powers or even emergency can make the doctrine disappear from major questions. Didn’t we say recently that an emergency cannot clarify what is ambiguous?” she asked, referring to an earlier Supreme Court ruling against the executive branch during the COVID-19 pandemic. At issue in this case is whether Trump can use the International Emergency Economic Powers Act, or IEEPA, to circumvent Congress’s power to levy tariffs against virtually every country in the world through presidential declarations of national emergencies.
The first of two conservative theories to receive significant attention during oral arguments, the major issues doctrine, holds that in the event a president issues a policy of what the court characterizes as “vast economic and political significance,” the law used must explicitly grant those powers to the executive branch. It has historically been used to obstruct Democratic policies and has been applied especially frequently to oppose many of former President Joe Biden’s priorities, including student loan forgiveness. Then, liberal justice Elena Kagan denounced the use of the doctrine as a “danger to the democratic order.” Now his political allies on the Court have tried to use him to enlighten their conservative colleagues about what the Court’s positions in past cases should mean for it.
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
Justice Sonia Sotomayor set the tone at the start of the more than two-and-a-half-hour proceedings, when she outlined to Solicitor General D. John Sauer the crux of the argument against Trump’s emergency tariffs: that tariffs are taxes and that taxation is an authority of Congress.
Sotomayor does not understand any argument, she said, “that foreign powers or even emergency can make the doctrine disappear from major questions. Didn’t we say recently that an emergency cannot clarify what is ambiguous?” she asked, referring to an earlier Supreme Court ruling against the executive branch during the COVID-19 pandemic. At issue in this case is whether Trump can use the International Emergency Economic Powers Act, or IEEPA, to circumvent Congress’s power to levy tariffs against virtually every country in the world through presidential declarations of national emergencies.
The first of two conservative theories to receive significant attention during oral arguments, the major issues doctrine, holds that in the event a president issues a policy of what the court characterizes as “vast economic and political significance,” the law used must explicitly grant those powers to the executive branch. It has historically been used to obstruct Democratic policies and has been applied especially frequently to oppose many of former President Joe Biden’s priorities, including student loan forgiveness. Then, liberal justice Elena Kagan denounced the use of the doctrine as a “danger to the democratic order.” Now his political allies on the Court have tried to use him to enlighten their conservative colleagues about what the Court’s positions in past cases should mean for it.
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
In recent years, both theories have been invoked with increasing frequency by the conservative majority, which has invalidated the actions of Democratic presidents and their executive regulatory agencies. In Wednesday’s arguments, liberals sought to convince conservative justices most receptive to theories that the Republican president had significantly overstepped his authority based on both, or either, and that the tariffs were therefore illegal and should be revoked.
Justice Sonia Sotomayor set the tone at the start of the more than two-and-a-half-hour proceedings, when she outlined to Solicitor General D. John Sauer the crux of the argument against Trump’s emergency tariffs: that tariffs are taxes and that taxation is an authority of Congress.
Sotomayor does not understand any argument, she said, “that foreign powers or even emergency can make the doctrine disappear from major questions. Didn’t we say recently that an emergency cannot clarify what is ambiguous?” she asked, referring to an earlier Supreme Court ruling against the executive branch during the COVID-19 pandemic. At issue in this case is whether Trump can use the International Emergency Economic Powers Act, or IEEPA, to circumvent Congress’s power to levy tariffs against virtually every country in the world through presidential declarations of national emergencies.
The first of two conservative theories to receive significant attention during oral arguments, the major issues doctrine, holds that in the event a president issues a policy of what the court characterizes as “vast economic and political significance,” the law used must explicitly grant those powers to the executive branch. It has historically been used to obstruct Democratic policies and has been applied especially frequently to oppose many of former President Joe Biden’s priorities, including student loan forgiveness. Then, liberal justice Elena Kagan denounced the use of the doctrine as a “danger to the democratic order.” Now his political allies on the Court have tried to use him to enlighten their conservative colleagues about what the Court’s positions in past cases should mean for it.
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
In recent years, both theories have been invoked with increasing frequency by the conservative majority, which has invalidated the actions of Democratic presidents and their executive regulatory agencies. In Wednesday’s arguments, liberals sought to convince conservative justices most receptive to theories that the Republican president had significantly overstepped his authority based on both, or either, and that the tariffs were therefore illegal and should be revoked.
Justice Sonia Sotomayor set the tone at the start of the more than two-and-a-half-hour proceedings, when she outlined to Solicitor General D. John Sauer the crux of the argument against Trump’s emergency tariffs: that tariffs are taxes and that taxation is an authority of Congress.
Sotomayor does not understand any argument, she said, “that foreign powers or even emergency can make the doctrine disappear from major questions. Didn’t we say recently that an emergency cannot clarify what is ambiguous?” she asked, referring to an earlier Supreme Court ruling against the executive branch during the COVID-19 pandemic. At issue in this case is whether Trump can use the International Emergency Economic Powers Act, or IEEPA, to circumvent Congress’s power to levy tariffs against virtually every country in the world through presidential declarations of national emergencies.
The first of two conservative theories to receive significant attention during oral arguments, the major issues doctrine, holds that in the event a president issues a policy of what the court characterizes as “vast economic and political significance,” the law used must explicitly grant those powers to the executive branch. It has historically been used to obstruct Democratic policies and has been applied especially frequently to oppose many of former President Joe Biden’s priorities, including student loan forgiveness. Then, liberal justice Elena Kagan denounced the use of the doctrine as a “danger to the democratic order.” Now his political allies on the Court have tried to use him to enlighten their conservative colleagues about what the Court’s positions in past cases should mean for it.
Sauer’s responses, stated and restated repeatedly throughout the proceedings, rejected the major questions doctrine on the grounds that it did not apply in a “foreign policy context” and that IEEPA’s use of the verb “regulate” naturally implied tariffs anyway.
“So Biden could have declared a national emergency on global warming and then gotten forgiveness from his students for not being a major issue doctrine? Sotomayor followed him.
Conservative justices sometimes also seemed happy to accept the argument their liberal colleagues cooked up for them, suggesting that they, too, thought the major issues doctrine was at least relevant here, and at most jeopardized Trump’s IEEPA tariffs.
“Some time ago you rejected the applicability of the major questions doctrine,” Chief Justice John Roberts said. “I want you to explain this further. It seems like it might be directly applicable.”
A protester holds a sign reading “Tariffs are bad” outside the U.S. Supreme Court in Washington, DC, November 5, 2025. The Supreme Court will hear arguments on Wednesday on the legality of a large portion of Donald Trump’s tariffs, in a landmark case that could uphold – or upend – the president’s economic agenda. Billions of dollars in tariff revenue and key leverage in Trump’s trade wars hang in the balance as the conservative-dominated court once again grapples with new tests of presidential authority. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
The nondelegation principle, the other legal theory favored by conservatives that saw heavy rotation Wednesday, holds that Congress cannot delegate its legislative and legislative power to another body.
A subsequent series of questions from Trump-appointed Justice Neil Gorsuch pressed the issue of the congressional delegation and questioned the notion that Congress would have given a president such broad powers to force increased revenue through tariffs, even in a foreign policy context.
“Can Congress delegate to the President the power to regulate commerce with foreign nations as it sees fit? » asked Gorsuch.
“Explain how you draw the line,” Gorsuch said, building on Sauer’s foreign affairs exception argument. “If this is true,” he continued, “what would stop Congress from simply abdicating all responsibility for regulating foreign trade – and even declaring war – to the president?
Gorsuch seemed at times dissatisfied with the government’s responses and emphasized how difficult it would be, if IEEPA actually gave the president tariff powers, for Congress to wrest those powers from the executive branch.
“If I may avoid those words, I think you’re saying no, the president does not have inherent authority over peacetime tariffs,” Gorsuch said at one point.
That these questions were raised by liberals became something of a joke during arguments by Neal Katyal, the lawyer for an Illinois-based toy company suing the administration over tariffs and a former acting solicitor general in the Obama administration.
“I wonder if you ever thought that your legacy as a defender of the Constitution would be ‘the man who revived the non-delegation argument,'” Justice Sam Alito asked Katyal, to laughter from the crowd.
Pointing out the irony, Katyal went even further.
“Hell yes, Justice Alito,” he said. Referring to an earlier sentence from Gorsuch — asking whether allowing Trump to impose tariffs on IEEPA would largely override the nondelegation theory — Katyal asserted, “I think Justice Gorsuch got it right.”
Even aside from discussions of the two legal theories in question, the justices, including at least some conservatives, appeared skeptical of the government’s arguments, probing the validity of how Trump’s national emergency declarations could apply to such a diverse range of foreign entities.
“Generally speaking, do you think every country should be subject to tariffs because of threats to the industrial base? asked Judge Amy Coney Barrett. “Spain? France?”
William Reinsch, former chairman of the National Foreign Trade Council who represents businesses in areas of taxation and foreign trade, told TPM in an email after the arguments concluded that while major questions and non-delegation were two of the central elements of Wednesday’s hearing, he did not have a clear sense of where the justices stood on Trump’s actions. Reinsch, who is currently a senior adviser at the Center for Strategic and International Studies, said he was modestly surprised during the oral arguments by Gorsuch, “who seemed more willing to speak out against Trump than I had expected.”
