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.”
If “duties” are a tax since it might increase costs for a good, can birthright citizenship (outside of slavery at the time of Constitutional Amendment) and massive immigration of recent time be considered a tax that Congress did not legislate? Is there any question both of the latter have impacted housing costs? .. and more people chasing a limited number of goods that leads to increased prices of goods? Seems like the Supreme Court could open up new avenues for fighting birthright citizenship and perhaps legal pathways to sue sanctuary cities and sanctuary states?
*. OT : Mandani election and celebration with Rashida Talib expletives were insulting.
Keep in mind Mandani got 20% of registered voters. That means 80% did not vote nor voted for him. 80%! In such cases with a tiny vote the office should be declared vacant, vacated. There isn’t a mayor of NYC. A minimum required votes must somehow be considered moving forward.
It’s reached absurdity. It’s one thing to be poor and another thing to be poor and immoral. Mandani has nothing. He’ll try to push 80% of the people around and he’ll find himself either resigning, recalled or in a trunk.
Try stupid, poor and immoral.
I’m confused. Trump institutes a tariff on goods from another country. That means a sum of money must be added to the value of the goods being exported to the US. That is not the same as adding a cost to each item, directly. It is the prerogative of the exporter to up their product price or absorb the tariff as a cost of doing business without affecting product pricing. If a tariff is a tax, it’s one imposed arbitrarily by an exporter and paid by the consumer, if the consumer decides to purchase the higher priced goods shipped to the US. The goal of the tariff is not to penalize consumer but to change the behavior of an exporting country to the benefit of the US consumer. How does of this fit the idea of tariffs as a tax?
“It is the prerogative of the exporter to up their product price or absorb the tariff as a cost of doing business without affecting product pricing.”
No, that’s not how tariffs work. The exporter does not add the cost of the tariff. They don’t pay the tariff. The importer does. A tariff is imposed on goods that come into the country and the importer (the American company) pays the tariff(tax). In turn, they pass on the cost of the tariff onto the consumer (you).
The government cannot tax a foreign company’s products made outside the country. It can impose a tax (tariff) on products that arrive on U.S. Soil because once those products enter the country they fall within the jurisdiction of the Constitution and the power of Congress’s taxation powers. We pay those tariffs, not the foreign company.
“The exporter does not add the cost of the tariff. They don’t pay the tariff.”
Wrong, wrong, and wrong! The importer pays the tariff. The costs, in general, are absorbed by governments, the exporter, the retailer, and the buyer. However, that allocation varies based on circumstances.
George Svelaz, you have no idea how a marketplace works.
You are correct on the point about how a tariff works, but not about it’s purpose. You are wildly incorrect to the point of lying about who pays the tariff. You merely regurgitated a Liberal Lie about that.
Tariffs are designed to equalize opportunity for domestic companies where foreign producers have lower production costs due to unfair competition, demonstrated by, but not limited to, dramatically lower wages for foreign workers or direct foreign government’s fiduciary support for foreign businesses. As to the falsehood where you implied that consumers somehow are required to pay the tariff, that is in violation of all Economic principles. As discussed in great detail in multiple writings, Thomas Sowell repeatedly makes the point that the underlying principle of Economics is that scarce resources have multiple uses. That translates into the fact that consumers ALWAYS have multiple choices, and anyone with a functional brain realizes that price is a big determinant of which of SEVERAL alternatives a consumer chooses to purchase. Example: For a while I was buying Mexican beef. The quality was good and it cost less. The cost is no longer lower, so I no longer buy Mexican beef. ALL importers know that passing along the tariff will ALWAYS lower the sales, based on this principle. If they have any business acumen they don’t do that AND if they try it, they soon stop, or go out of business for lack of sales.
And yet….. there has not been any indication that the tariffs have caused the “consumer” to pay higher prices!
Tax and tariff are not the same. Check Websters dictionary. They are not interchangeable. Forehead slap!
DJT also has practice.
“Tax and tariff are not the same. Check Websters dictionary.”
I’ll go with great free market economists like von Mises, Adam Smith, and Walter Williams — all of whom argue, quite properly, that a tariff is a type of tax. And as a tax, tariffs are wealth *destroyers*.
Yeah Yeah Sure it does. I have already responded to this lie and I am not going to write it again. Suffice it to state that those of us with a brain know that’s not true. Try reading Sowell if you actually want to understand Economics, not these posers.
“Try reading Sowell . . .”
You’re using Sowell to *defend* tariffs?! You might want to read (and comprehend) what he wrote about the destructive nature of tariffs, and his complete denunciation of Trump’s tariffs.
No tariffs… in an ivory tower world. Also no war, pestilence disease or poverty.
The real world is somewhat different.
Totally Agree 🇱🇷
There is the point to be made that just because a tariff is established how is it a tax if the consumer never sees an increase in the price of an item?
As is being witnessed the price of goods has NOT increased because of the tariffs that were implemented!
If the big unknown is whether Congress intended for IEEPA to include tariff-power for the POTUS, then why wouldn’t the majority conclude that non-delegability has to be presumed in the absence of detailed statutory instructions on how that power was to be triggered, wielded, and limited?
I’m still hung on the issue of what is a Women? And, as Justice Jackson said, are blacks handicapped? Ouch, that seems incredibly stupid and racist.
Another leftist scumbag speech-phobic student vandalizes a TPUSA table at a university, this time U of Iowa (video included at link below). He has been criminally charged with disorderly conduct, harassment, and criminal mischief.
https://cbs2iowa.com/news/local/university-of-iowa-student-charged-after-allegedly-flipping-political-groups-table-on-cam
Lots of hate and violence in that comment.
The table was placed by the psych dept. The table is like flypaper. It catches unstable flies.
*. ^^^^ coffee cups had no coffee in them. Flypaper…shoo fly shoo…
Late breaking news is that the Sorceress Of Wall Street is finally retiring, walking away with $250+ million dollars as the most successful investor at growing wealth from nothing in Wall Street history?
No silly; it’s not a Biden. Or even Obama from da’ hood. It’s Nancy Pelosi announcing she’s retiring.
If only she’d applied her secrets on forecasting economics to her time as the Democrat leader on budgeting.
JONATHAN TURLEY: Supreme Court ruling on Trump tariffs comes down to a numbers game
Oral arguments reveal deep skepticism in tariffs but might result in a mixed decision
By: Jonathan Turley Fox News – November 6, 2025
https://www.foxnews.com/opinion/jonathan-turley-supreme-court-ruling-trump-tariffs-comes-down-numbers-game
Video Interview:
Jamieson Greer explains the legal precedents for tariffs as the Supreme Court analyzes their usage
U.S. Trade Representative Amb. Jamieson Greer addresses the legal uniqueness of the word ‘tariff’ on ‘The Ingraham Angle.’
By: Laura Ingraham – The Ingraham Angle – Fox News ~ November 6, 2025