US Supreme Court questions legality of Trump’s global tariffs

WASHINGTON - US Supreme Court justices raised doubts on Nov 5 over the legality of President Donald Trump’s sweeping tariffs in a case with implications for the global economy that marks a major test of Mr Trump’s powers.

Conservative and liberal justices alike sharply questioned the lawyer representing Mr Trump’s administration about whether a 1977 law meant for use during national emergencies gave Mr Trump the power he claimed to impose tariffs or whether the Republican President had intruded on the powers of Congress.

But some of the conservative justices also stressed the inherent authority of presidents in dealing with foreign countries, suggesting the court could be sharply divided in the outcome of the case.

The court has a 6-3 conservative majority.

The arguments, lasting more than 2½ hours, came in appeals by the administration after lower courts ruled that Mr Trump’s unprecedented use of the law at issue to impose the tariffs exceeded his authority.

Businesses affected by the tariffs and 12 US states, most of them Democratic-led, challenged the tariffs.

Conservative Chief Justice John Roberts told US Solicitor-General D. John Sauer, arguing for the administration, that the tariffs are “the imposition of taxes on Americans, and that has always been the core power of Congress”.

The tariffs – taxes on imported goods – could add up to trillions of dollars for the US over the next decade. 

The US Constitution gives Congress the authority to issue taxes and tariffs.

Mr Roberts suggested that the court could apply its “major questions” doctrine, which requires executive branch actions of vast economic and political significance to be clearly authorised by Congress.

“The justification is being used for a power to impose tariffs on any product, from any country, in any amount, for any length of time. I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for that claim seems to be a misfit,” Justice Roberts said.

The Supreme Court had applied the “major questions” doctrine to strike down key policies of Mr Trump’s Democratic predecessor Joe Biden.

Mr Trump has heaped pressure on the Supreme Court to preserve tariffs that he has leveraged as a key economic and foreign policy tool.

A ruling against Mr Trump would mark a significant departure for the court, which has backed him in a series of decisions allowing on an interim basis his far-reaching actions in areas as varied as his crackdown on immigration, the firing of federal agency officials and banning transgender troops.

Mr Trump invoked the International Emergency Economic Powers Act, or IEEPA, to impose the tariffs on nearly every US trading partner.

The law lets a president regulate commerce in a national emergency.

He became the first president to use IEEPA for this purpose, one of the many ways he has pushed the boundaries of executive authority since returning to office in January.

Conservative Justice Amy Coney Barrett questioned Mr Sauer about his argument that IEEPA’s language granting presidents emergency power to “regulate importation” encompasses tariffs.

“Can you point to any other place in the code or any other time in history where that phrase together ‘regulate importation’ has been used to confer tariff imposing authority?” Justice Barrett asked Mr Sauer.

Liberal Justice Ketanji Brown Jackson said IEEPA was intended to limit presidential authority, not expand it.

“It’s pretty clear that Congress was trying to constrain the emergency powers of the president,” Justice Jackson said.

While the Supreme Court typically takes months to issue rulings after hearing arguments, the administration has asked it to act swiftly in this case, though the timing of the decision remains unclear.

US Treasury Secretary Scott Bessent, who attended the arguments on Nov 5, has said that if the Supreme Court rules against Mr Trump, the administration would switch to other legal authorities to ensure his tariffs remain in place.

Mr Bessent afterwards told Fox Business Network’s Kudlow programme that he came away from the arguments “very, very optimistic”.

Mr Trump has imposed some additional tariffs invoking other laws. Those are not at issue in this case.

‘Ruthless trade retaliation’

IEEPA gives the president power to deal with “an unusual and extraordinary threat” amid a national emergency.

It historically has been used for imposing sanctions on enemies or freezing their assets.

Mr Sauer said Mr Trump determined that US trade deficits have brought the nation to the brink of an economic and national security catastrophe, and that tariffs have helped Mr Trump negotiate trade deals.

Unwinding those deals “would expose us to ruthless trade retaliation by far more aggressive countries and drive America from strength to failure with ruinous economic and national security consequences”, Mr Sauer said.

Mr Trump instigated a global trade war when he returned to the presidency in January, alienating trading partners, increasing volatility in financial markets and fuelling global economic uncertainty.

The President has wielded tariffs to extract concessions and renegotiate trade deals, and as a cudgel to punish countries on non-trade political matters.

He invoked IEEPA in imposing tariffs on goods imported from individual countries to address what he called a national emergency related to US trade deficits, as well as in February as economic leverage on China, Canada and Mexico to curb the trafficking of the often-abused painkiller fentanyl and illicit drugs into the United States.

‘Major questions’ doctrine

Emphasising the president’s powers in the realm of foreign affairs, Mr Sauer told the justices that the “major questions” doctrine should not apply in this context.

Conservative Justice Brett Kavanaugh signalled potential sympathy for Mr Trump, pushing back on the argument that Mr Trump had done something novel that could implicate the doctrine.

Mr Kavanaugh noted that President Richard Nixon imposed a worldwide tariff under IEEPA’s predecessor statute in the 1970s that contained similar language regarding regulation of importation.

“That’s a good example for you,” Justice Kavanaugh told Mr Sauer.

The Supreme Court has long shown deference to the president on conducting foreign policy.

Justice Roberts, while questioning a lawyer for the private business challengers, Mr Neal Katyal, seized upon this point, noting that Mr Trump’s tariffs have undoubtedly given him leverage in making foreign trade agreements.

The IEEPA-based tariffs generated US$89 billion (S$116.35 billion) in estimated collections between Feb 4 and Sept 23, when the most recent data was released by the US Customs and Border Protection agency.

“Sure, the tariffs are a tax, and that’s a core power of Congress, but they are a foreign-facing tax, right? And foreign affairs is a core power of the executive,” Justice Roberts told Mr Katyal.

Questions posed by conservative Justice Neil Gorsuch suggested that he thinks Mr Sauer’s claims about the breadth of the president’s inherent foreign affairs powers would threaten to undermine the Constitution’s separation of powers between the federal government’s executive and legislative branches.

“What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce – or for that matter, declare war – to the president?” Justice Gorsuch asked. REUTERS