Supreme Court’s conservatives face a test of their own in judging Trump’s tariffs

WASHINGTON- Conservatives on the Supreme Court face a test of their own this week as they decide whether President Trump had the legal authority to impose tariffs on imports from countries around the world.

The problem involves import taxes paid by American businesses and consumers.

Small business owners had filed lawsuits, including a maker of “educational toys” in Illinois and an importer of wine and spirits in New York. They said Trump’s ever-changing tariffs had seriously disrupted their businesses, and they won judgments saying the president had exceeded his authority.

On Wednesday, the justices will hear their first major challenge to Trump’s claims of unilateral executive power. And the outcome will likely depend on three doctrines championed by the Court’s conservatives.

First, they argue that the Constitution should be interpreted according to its original meaning. Its opening words say: “All legislative powers…shall be vested” in Congress, and elected representatives “shall have power to lay and collect taxes, duties, imposts and excises.”

Second, they believe that laws passed by Congress should be interpreted according to their words. They call this “textualism,” which rejects a more liberal and open approach that would include the general purpose of the law.

Trump and his lawyers say his sweeping “Liberation Day” tariffs were authorized by the International Economic Emergency Powers Act, or IEEPA.

This 1977 law states that the president can declare a national emergency to “address any unusual and extraordinary threat” involving the national security, foreign policy or economy of the United States. Faced with such an emergency, it can “investigate, block… or regulate” the “import or export” of any goods.

Trump said the country’s “persistent” balance of payments deficit spanning five decades posed an “unusual and extraordinary threat.”

In the past, the law has been used to impose sanctions or freeze the assets of Iran, Syria and North Korea or terrorist groups. It does not use the words “tariffs” or “duties” and had not been used for tariffs before this year.

The third doctrine originated with Chief Justice John G. Roberts Jr. and is called the “major questions” doctrine.

He and the five other conservatives said they were skeptical of the wide-ranging and costly regulations issued by the Obama and Biden administrations on issues such as climate change, student loan forgiveness or mandatory COVID-19 vaccinations for 84 million Americans.

Congress makes the laws, not federal regulators, they said in the 2022 case West Virginia v. Environmental Protection Agency.

And barring “clear authorization from Congress,” Roberts said the court would not uphold allegations of “extravagant statutory power over the national economy.”

Now all three doctrines are before the judges, as lower courts have relied on them to rule against Trump.

No one disputes that the president could have imposed drastic global tariffs if he had sought and received approval from the Republican-controlled Congress. However, he insisted that the power belonged solely to him.

In a social media post, Trump called the tariff case “one of the most important in the history of the country. If a president is not allowed to use tariffs, we will be at a disadvantage to every other country in the world, especially the ‘majors’. In the truest sense of the word, we would be defenseless! Tariffs have brought us great wealth and national security in the nine months I have had the honor of serving as president.

Attorney General D. John Sauer, his top lawyer in court, says the tariffs are about foreign affairs and national security. And if that is the case, the court should defer to the president.

“IEEPA authorizes the imposition of regulatory tariffs on foreign imports to address foreign threats – which differ fundamentally from domestic taxation,” he wrote last month.

For the same reason, “the major questions doctrine…does not apply here,” he said. This is limited to domestic affairs and not foreign affairs, he argued.

Justice Brett M. Kavanaugh has struck the same note in the past.

Sauer will also seek to persuade the court that the word “regulate” imports includes the imposition of customs duties.

The challengers are backed by prominent conservatives, including Stanford law professor Michael McConnell.

In 2001, he and John Roberts were nominated simultaneously to a federal appeals court by President George W. Bush, and he later served with now-Judge Neil M. Gorsuch on the 10th U.S. Circuit Court of Appeals in Denver.

He is the lead attorney for a group of small business owners.

“This case is the essence of the American Revolution. A tax was only legitimate if it was imposed by the people’s representatives,” McConnell said. “The president does not have the authority to impose taxes on American citizens without Congress.”

His brief argues that Trump claims unprecedented power in American history.

“Until the 1900s, Congress exercised its tariff power directly, and every delegation since has been explicit and strictly limited,” he wrote in Trump vs. YOUR Selections. “Here, the government claims that the president can impose tariffs on the American people whenever he wants, at any time, on any country and product he wants, for as long as he wants – simply by declaring that long-standing U.S. trade deficits are a national ’emergency’ and an ‘unusual and extraordinary threat,’ statements the government tells us are not reviewable. The president can even change his mind tomorrow and come back the day after that.”

He said the “major issues” doctrine fully applies here.

Two years ago, he pointed out that the court called Biden’s proposed student loan forgiveness “staggering in every way” because it could cost more than $430 billion. By comparison, he said, the Tax Foundation estimates that Trump’s tariffs will impose $1.7 trillion in new taxes on Americans by 2035.

The case poses a major test of whether the Roberts court will impose legal limits on Trump’s powers as president.

But the result will not be the final word on tariffs. Administration officials have said that if they lose, they will seek to impose them under other federal laws involving national security.

An emergency appeal to test the president’s authority to send National Guard troops to U.S. cities is still pending in court, despite the objection of the governor and local officials.

Last week, the court requested additional briefs on the Militia Act of 1908, which states that the president can call out the National Guard if he cannot “with the regular forces…execute the laws of the United States.”

The government had assumed that regular forces were police and federal agents, but a law professor said that in the original law, regular forces referred to the military.

The judges asked for clarification from both sides by November 17.