Trump’s Taxing Supreme Court Argument

National Review Online

Thursday, November 6, 2025

 

The Supreme Court on Wednesday heard arguments in two cases challenging Donald Trump’s “emergency” tariffs imposed under the International Emergency Economic Powers Act of 1977 (IEEPA). Three categories of tariffs are at issue: the worldwide 10 percent tariff, the retaliatory “liberation day” tariffs aimed at closing trade deficits in goods, and tariffs on Mexico, Canada, and China that aim to retaliate for fentanyl trafficking. Solicitor General John Sauer faced some hard questioning, and rightly so.

 

The Court should rule that the congressional power to tax — the very core of the Article I power of the legislature — cannot be delegated without clear and unambiguous statutory language and identifiable limiting principles.

 

IEEPA has nothing of the sort. It never mentions tariffs, taxes, or any synonym for them. No prior president has argued that IEEPA authorizes tariffs. The most that IEEPA says is that the president may “regulate” the “importation or exportation” of foreign goods during a non-wartime emergency. Broader powers are granted during wartime, when presidents may have more sweeping Article II authority of their own, but Sauer rightly conceded that the administration does not claim that presidents have any inherent authority to impose tariffs in peacetime. What they have must come from a statute.

 

Moreover, many other statutes do grant tariff-related powers to the president — but are much more carefully limited in doing so. Trump reached for IEEPA precisely so that he could circumvent all of those constraints while invoking an open-ended “emergency” that courts would be hesitant to review. That is precisely the sort of too-clever-by-half exploitation of vague-at-best statutory language that the Court has regularly rejected. As Justice Elena Kagan asked, if IEEPA’s powers are so broad, why would any president ever bother invoking any of the other statutory tools? Justice Samuel Alito expressed frustration that Trump had not cited other arguable sources of tariff authority, but it is not the Court’s job to opine on powers that the president has not invoked.

 

There was broad concern about the nearly limitless powers claimed by the administration, and specific concern that it was invading the core control of Congress over taxation without a specific grant delegating that power. Sauer conceded to Justice Ketanji Brown Jackson that, under Trump’s theory, if a future Democratic president declared a global climate emergency, this could unlock sweeping powers that could not be reviewed by the courts. Justice Sonia Sotomayor suggested that such an emergency could have been used to forgive student loans. The prospect of that sort of governance should be enough to horrify the justices.

 

Chief Justice John Roberts, nodding toward the Court’s “major questions” doctrine that cautions against finding broad powers in laws that don’t mention them explicitly, noted that nobody had ever before claimed such a sweeping power to impose tariffs under IEEPA that cover any product, from any country, in any amount, at any time. “That does seem like it’s major authority,” he noted. Justice Neil Gorsuch raised more fundamental questions: Could Congress simply delegate away all of its powers? If the Court rules in Trump’s favor, is it creating a “one-way ratchet” in which those powers can never, as a practical matter, be clawed back?

 

While the argument strayed into the weeds of precedents, the justices returned again and again to the core question: Is a tariff different from other trade sanctions (such as an embargo or an import quota) because it is a tax? Sauer’s insistence that tariffs are regulations with only the incidental benefits of raising revenue founders upon the administration’s own claim that they will raise trillions of dollars and help close the budget deficit.

 

The justices are properly concerned not to unduly tie the executive’s hands in dealing with genuine foreign emergencies such as hostage crises or imminent invasions. Some asked if it was odd to allow presidents to declare embargoes but not to give them the lesser power to use tariffs. But as Gorsuch noted, the taxing power has been different all the way back to the Navigation Acts, hence the slogan “no taxation without representation.”

 

Beyond allowing presidents to impose and change taxes without the legislature, the creation of an executive slush fund of monies raised by executive fiat gives presidents fiscal independence from Congress — a power that Trump has threatened to use in the current government shutdown. Fear of a self-financing executive goes back as far as England’s Glorious Revolution and was revived as recently as the Biden administration’s threat to start issuing debt without Congress. It is a further reason why the post-Watergate Congress in 1977, which enacted IEEPA in part in response to a global “surcharge” imposed by Richard Nixon, did not write a statute giving emergency peacetime taxing powers to the president. The Court should not now rewrite it to create such powers.