The oral argument yesterday on the Trump tariffs was fascinating as justices struggled with the knotty question of whether a president has the sweeping authority claimed by President Donald Trump under the International Emergency Economic Powers Act (IEEPA). The justices were skeptical and uncomfortable with the claim of authority, and the odds still favored the challengers. However, there is a real chance of a fractured decision that could still produce an effective win for the Administration.

THE COUNSEL

First, the counsel. I was highly impressed by the performance of Solicitor General John Sauer, who did a brilliant job in weaving historical and precedential arguments in favor of the tariffs. He had a tough case and at times a tough audience, but maintained a coherent and consistent position.

Many were surprised that the challengers selected the liberal firebrand Neil Katyal for counsel on the other side. Kavanaugh even made a quip about the incongruity of Katyal arguing for issues like non-delegation. Katyal struggled at points and Justice Amy Coney Barrett bashed him once for seemingly flipping his position in oral argument. However, Katyal made the key points against the claim of statutory and constitutional authority.

Overall, the Administration faced worrisome moments in the argument, with Chief Justice John Roberts repeatedly referring to tariffs as a clear “tax” and Justice Neil Gorsuch repeatedly raising the “major questions doctrine.” Neither works well for the Administration. If this is a tax, it is more likely viewed as a usurpation of Congress’s inherent tax authority.

THE HEAD COUNT

However, the head counting becomes more difficult as you comb through the specific questions of the justices.

We begin with the clear votes in favor of the challengers by Justices Sotomayor and Jackson. Indeed, at times, both justices seemed to take on the role of counsel in clarifying the confusion left by the challengers and directing them back to what they viewed as more solid ground.

Justice Kagan, as usual, was more circumspect, but still clearly leaning against the Administration.

That leaves two more votes to reject the tariffs.

The most obvious candidate would be Justice Amy Coney Barrett, who hit Sauer hard with questions on the largely unprecedented scope of the Trump tariffs. Much of this turned on the meaning of the terms “regulate importation” in IEEPA. Barrett asked pointedly: “Can you point to any other place in the code or any other time in history where that phrase, together with ‘regulate importation,’ has been used to confer tariff-imposing authority?”

Sauer stressed that a predecessor law was used in this manner, but Barrett repeatedly returned and was clearly not satisfied. At one point, Sotomayor (prematurally in my view) snapped at Sauer and said “just answer the justice’s question.”