The Latest: Supreme Court appears skeptical of Trump’s tariffs

WASHINGTON (AP) – The U.S. Supreme Court is hearing arguments Wednesday over President Donald Trump’s sweeping tariffs, putting a tool at the center of his economic and foreign policy agendas squarely before the high court.

The case involves the tariffs first announced in April on almost all U.S. trading partners and the ones from February on imports from Canada, China and Mexico. Trump justified these by declaring separate national emergencies under the International Emergency Economic Powers Act.

Earlier this year, however, two lower courts and a federal appeals court ruled that the emergency law he invoked doesn’t give him unlimited power to set tariffs. The Constitution says tariff power belongs to Congress.

Now, arguments on whether the president’s tariffs overstep federal law arrive before a conservative-led Supreme Court, which has thus far been reluctant to check to Trump’s wide-ranging use of executive powers.

Here’s the latest:

Kavanaugh asks why Congress would rationally give the president that enormous authority, but not the power to impose even a 1% tariff.

Kavanaugh says it creates a doughnut hole in the law. But Gutman says the power to tax is fundamentally different. “It’s not a doughnut hole but a fundamentally different pastry,” Oregon’s lawyer said, drawing laughs.

Under questioning, Katyal conceded it would be hard to refund money to importers if the court strikes down Trump’s tariffs.

So far, the Treasury has collected nearly $90 billion from the import taxes the president has imposed under an emergency powers law. “We don’t deny that it’s difficult,” Katyal said.

But there’s a precedent for companies getting their money back. In the 1990s, the courts struck down as unconstitutional a harbor maintenance fee on exports and set up a system for exporters to apply to get their money back.

Thoughts about lunch could be mixing with the justices’ questions about tariffs as the arguments stretch into the afternoon. Oregon’s lawyer is arguing on behalf of a dozen states that also sued over the tariffs.

The court unanimously ruled for President Gerald Ford in a case about the imposition of tariffs on oil imports, based on a different statute that also doesn’t mention the word tariffs.

“The court 9-0 rejected the argument” that the absence of the word tariff doomed Ford’s action, Kavanaugh said.

Thomas asked if the president could use tariffs as leverage to pressure a foreign government – perhaps China – to return an American taken hostage.

No, Katyal said: “Tariffs are different because they’re revenue raising.”

And Congress has the power to impose taxes, including tariffs, unless it explicitly delegates that power to the president.

Nondelegation is an argument that’s dear to conservatives, and on Wednesday it was being made by a onetime Democratic appointee.

Alito gently ribbed Katyal, who served in the Obama administration, about embracing the nondelegation doctrine, last used 90 years ago, over tariffs.

“Mr. Katyal, I wonder if you ever thought your legacy as a constitutional advocate would be as the man who revived the nondelegation argument?” Alito said, drawing a chuckle from the courtroom.

“Heck yes!” the lawyer replied.

The challengers’ lawyer argued that the president has other authority to impose tariffs, without relying on a national emergency.

For example, he cited Section 122 of the Trade Act of 1974, which allows the president to combat trade deficits by imposing tariffs of up to 15% for up to 150 days without congressional approval.

“Congress knows exactly how to delegate its tariff powers,” Katyal said, noting that several statutes explicitly give the president power to tax imports – but only within limits.

“IEEPA looks nothing like those laws,” he said.

The chief justice invokes the president’s broad authority over foreign affairs and, alluding to deals struck by Trump.

He notes that the tariffs “were quite effective in achieving objectives.”

Attorney Neal Katyal, in response to a question from Thomas, distinguishes between embargos, allowed by the law, and tariffs, which he says are not.

“Embargos stop the shipment, tariffs start the tax bill,” Katyal said.

He was solicitor general in the Obama administration, on an acting basis.

“One key takeaway is the concern that Congress can’t pull back the authority because it would require a veto-proof supermajority,” said Ryan Majerus, a partner at the law firm King & Spalding who was a trade official in the first Trump administration and the Biden administration.

He also said Gorsuch and Barrett seem to be the swing votes.

Stratos Pahis, who teaches trade law at the Brooklyn Law School, agreed. “Lots of skepticism so far from Justices Roberts, Gorsuch, and Barrett.”

You can’t predict the final score when the game is only half over, but so far Roberts, Barrett and Gorsuch have posed questions suggesting that they may not accept the administration’s arguments in favor of the tariffs.

The three liberal justices also seem skeptical of the tariffs. But again, we haven’t heard from the other side yet.

Getting to a key question in the case, Justice Brett Kavanaugh asked why the president’s power under IEEPA to regulate imports included the power to impose tariffs when the law does not even mention tariffs.

Sauer responded that tariffs are the “natural” and “in many ways the quintessential way” to regulate imports.

Gorsuch, a Trump appointee, has questions about both major questions and nondelegation. He is asking Sauer to provide limits on the broadest reading of the administration’s arguments in favor of tariffs.

Sauer agreed that another, very different president would have the authority to declare climate change an emergency and impose tariffs to deal with it.

Congress can delegate some of its powers to the executive branch, but there are limits.

Some of the conservative justices want to reinvigorate a legal doctrine that was last used in 1935.

Justice Neil Gorsuch voted in dissent in June to strike down a universal service fee on phone bills as an unconstitutional delegation of congressional power. The challenges hope to attract his vote on tariffs on the same basis.

Gorsuch has mostly worried about Congress giving away too much of its power to federal agencies. It’s unclear whether he’ll have the same reservation with the president involved.

The acronym IEEPA stands for the International Emergency Economic Powers Act, which is the 1977 law at the center of the case.

Presidents have used it dozens of times over the years, often to impose sanctions on other countries.

Trump is the first president to use it to impose tariffs. The challengers say that’s unconstitutional.

Conservative majorities blocked President Joe Biden’s $500 billion student loan forgiveness plan and other of his administration’s initiatives by ruling that Congress must speak clearly on questions of “vast economic and political significance.”

The court ruled that the statutes relied upon in those cases did not clearly give the administration the power to act.

The chief justice sounds skeptical that Trump can use the emergency powers law for tariffs.

Roberts noted “it has never been used before to justify tariffs.” However, he may be asking about this as a way to let the Trump administration’s lawyer offer a more expansive explanation.

The tariffs would be in trouble if they don’t have Roberts’ vote.

Trump-appointed Supreme Court Justice Amy Coney Barrett is drilling down to a key question in the case: Does the word “regulate” allow tariffs?

The Trump administration argues that it does, and that’s why they say he can impose and change tariffs during national emergencies.

Barrett grilled him on that point, questioning whether regulate has frequently been used to allow for tariffs.

Barrett is a conservative who’s gone her own way on some cases, and her vote will be key in the case.

Sauer provoked an objection from Justice Sonia Sotomayor after arguing that Trump’s tariffs were not designed to raise revenue for the federal government.

Trump has repeatedly boasted about how much money his import taxes are brining into the Treasury.

“You want to say tariffs are not taxes, but they are,” Sotomayor said.

Chief Justice John Roberts jumped in fairly quickly, questioning Sauer about whether he’s relying too much on an older decision on a different part of the emergency-powers law at the center of the case.

The chief justice is always a key person to watch, but his take will be especially important in this case.

Roberts was a law clerk at the time to the justice who wrote the 1981 opinion, William Rehnquist.

Conservative majorities blocked President Joe Biden’s $500 billion student loan forgiveness plan and other of his administration’s initiatives by ruling that Congress must speak clearly on questions of “vast economic and political significance.”

It’s not clear whether the justices will apply the same principle in the tariffs case, but lower courts did.

Sauer says it doesn’t apply to foreign affairs issues.

It should be a “hot bench,” with every justice posing multiple questions on an issue of extreme importance.

The court has allotted 80 minutes for arguments, but they will almost certainly extend well into early afternoon. Since returning to the courtroom following the COVID-19 pandemic, the justices have routinely gone beyond the time set aside for arguments.

Arguments are getting underway.

First up is Solicitor General D. John Sauer, Trump’s top Supreme Court lawyer, arguing for the Trump administration.

Trump has been vocal about the case and suggested at one point he might go to the arguments himself – something no other sitting president is recorded to have done.

He said Sunday he decided against it, but Treasury Secretary Scott Bessent is expected to attend.

“It’s not about me, it’s about our country,” Trump told reporters Sunday.

The court only agreed to hear the case in September, scheduling arguments less than two months later. The quick turnaround, at least by Supreme Court standards, suggests that the court will try to act fast.

High-profile cases can take half a year or more to resolve, often because the majority and dissenting opinions go through rounds of revision.

But the court can act quickly when deadline pressure dictates. Most recently, the court ruled a week after hearing arguments in the TikTok case.

The challengers aren’t the only ones urging the Supreme Court to rule against the tariffs.

Conservative-leaning groups like Cato Institute, the Chamber of Commerce and the Goldwater Institute have filed legal briefs urging the court to uphold the rulings against them.

Former national security officials, federal judges and economists also weighed in against them, as have hundreds of small businesses.

The tariffs have found some support in the docket from groups like the Trump-aligned America First Policy Institute.

Solicitor General D. John Sauer, Trump’s top Supreme Court lawyer, is defending the tariffs.

Neal Katyal, who held Sauer’s job on an acting basis in the Obama administration, represents small businesses that are challenging the tariffs.

Oregon Solicitor General Benjamin Gutman is appearing on behalf of 12 mostly Democratic-led states that also sued over the tariffs.

Trump has warned that a decision by the Supreme Court to overturn his tariffs poses a nearly existential threat to the nation’s economic growth.

But so far, there is little evidence that the duties have benefited the economy.

Pedestrians walk by a “Now Hiring” sign at an electronics store in Dallas, Thursday, Aug. 28, 2025. (AP Photo/LM Otero)

Manufacturers have cut jobs every month since Trump’s “Liberation Day” tariff announcement in April. And a survey of manufacturers released Monday found that U.S. factory activity contracted in October for the eighth straight month.

Many respondents to the survey complained that tariffs have disrupted their business.

Since returning to the White House in January, Trump has reversed decades of U.S. policy that favored free trade and low taxes on imports.

The average U.S. tariff rate has risen to 17.9% – highest since 1934 – from around 2.5% at the beginning of the year, according to Yale University’s Budget Lab.

If the Supreme Court strikes down the tariffs Trump justified by declaring economic emergencies, the average tariff rate would drop to 9.1%, the lab reported.

Tariff revenue came to $195 billion in the fiscal year that ended Sept. 30, up 153% from $77 billion in fiscal 2024. The import taxes he justified under an economic emergency law – the ones being challenged in the Supreme Court – brought in $89 billion.

Still, total tariffs accounted for less than 4% of federal revenue of $5.2 trillion in fiscal 2025.

For Trump, tariffs are not just a key part of his economic agenda, they’re also a cornerstone of his foreign policy.

He has wielded the import taxes as a threat to secure ceasefires, as political pressure during the prosecution of a Trump ally, and as punishment for a television ad.

In fact, the Justice Department has pointed to their prominence in foreign policy as one reason why the Supreme Court should not strike them down, since it’s an area where courts have long given deference to the executive branch.

The challengers, on the other hand, say that tariffs amount to a domestic tax because they’re paid by American companies that import goods, and taxation belongs to Congress.

Trump justified his sweeping tariffs on most U.S. trading partners by declaring that the country’s trade deficit amounted to a national emergency.

But the U.S. has been importing more than it exports for five decades. It hasn’t run a trade surplus since 1975.

Streets around the building are closed, as has recently been the case on days the court is in session. With Treasury Secretary Scott Bessent and members of Congress expected for the arguments, security is even tighter than usual.

The president has warned the United States will be rendered “defenseless” if he loses. But he’d actually still have plenty of options to keep taxing imports aggressively.

He can use other laws he deployed in his first term and can reach for more, including one aimed specifically at addressing trade imbalances and a previously unused Depression-era statute that allows for up to 50% tariffs against countries that treat American businesses unfairly.

He just won’t have nearly boundless authority to impose any tariff he wants anytime he wants to.

A buzzer and the court marshal’s cry, “All rise,” will signal the start of the session, the justices emerging from behind red curtains to take their seats at the court’s curved mahogany bench.

The livestream won’t kick in for several minutes, until after the ceremonial swearing-in of lawyers to the Supreme Court bar.