By Jan Wolfe
WASHINGTON (Reuters) -President Donald Trump’s administration was on the defensive for much of the arguments before the U.S. Supreme Court over his sweeping tariffs. A major reason for that, according to legal experts, was the surprisingly harsh questioning by Justice Neil Gorsuch, a conservative who sometimes defies expectations.
In one notable exchange on Wednesday, Gorsuch said he was concerned by the administration’s assertion that the tariffs are permissible because of the president’s broad authority in dealing with foreign countries.
If that were true, Gorsuch said, “what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce – for that matter, declare war – to the president?”
A 1977 LAW
The arguments focused on whether a 1977 law called the International Emergency Economic Powers Act, or IEEPA, meant for use during national emergencies gave Trump the power he claimed to impose tariffs. Every lower court to consider that question has ruled against Trump, but they allowed the tariffs to remain in place while the litigation made its way to the Supreme Court.
The Supreme Court has a 6-3 conservative majority, including three justices who Trump appointed during his first term in office. Gorsuch is one of those, appointed by Trump in 2017.
The court has proven receptive to Trump’s expansive view of presidential authority in a series of rulings since he returned to office in January. But the court primarily has confronted questions about Trump’s power through emergency orders that are not final rulings on the legal merits of his actions.
“Justice Gorsuch indicated more of an opposition than we had initially thought,” Walker Livingston, an analyst at the research firm Capstone, said about the tariffs.
The case marks the first time during Trump’s second term that the court is due to rule directly on one of his signature policies through its usual procedures, which include written briefings and an oral argument.
‘CORE POWER’
Some of the conservative justices signaled skepticism toward Trump’s arguments on Wednesday.
In one bad sign for the administration, Chief Justice John Roberts told 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.”
Conservative Justice Amy Coney Barrett, another Trump appointee, at times also expressed skepticism of Trump’s interpretation of IEEPA.
But Gorsuch in particular pushed back against Sauer’s arguments.
“Congress, as a practical matter, can’t get this power back once it’s handed it over to the president,” Gorsuch said of tariff authority. “It’s a one-way ratchet toward the gradual-but-continual accretion of power in the executive branch and away from the people’s elected representatives.”
Ashley Akers, a litigator at the firm Holland & Knight, called that a key moment from Wednesday. The exchange “highlighted the lack of a good answer on how Congress could reclaim authority without a veto-proof majority, portraying it as an irreversible shift,” Akers said.
Under questioning from Gorsuch, Sauer made some concessions that undermined the administration’s case, according to Todd N. Tucker, a political scientist at the Roosevelt Institute, a left-leaning think tank.
“Gorsuch correctly noted, and the DOJ (Department of Justice) agreed, that the president’s interpretation of IEEPA powers would allow a future president to declare a climate emergency and heavily tax gas-powered cars,” Tucker said.
While Gorsuch is a reliable conservative, he ruled against Trump in some high-profile matters during his first term. In 2018, Gorsuch sided with the court’s liberals and said a federal law that made it easier to deport immigrants who have been convicted of crimes was too vague to be enforced. Gorsuch also defied expectations by writing the court’s decision in a 2020 case that extended the Civil Rights Act of 1964’s protection against sex discrimination to cover sexual orientation and gender identity.
Tucker said Gorsuch has long been skeptical of executive branch agencies, but he is also a “presidentialist,” meaning he believes in the power and legitimacy of the president as leader.
“It was unclear what version of Gorsuch would show up today,” Tucker said.
In the end, Gorsuch ended up being “the biggest surprise” of the entire argument, Tucker said.
(Reporting by Jan Wolfe; editing by Amy Stevens and Will Dunham)
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