WASHINGTON, DC – FEBRUARY 13: U.S. President Donald Trump, joined by Secretary of Commerce Howard Lutnick, delivers remarks on reciprocal tariffs in the Oval Office at the White House on February 13, 2025 in Washington, DC. Trump announced his plan to increase U.S. tariffs to match the rates other nations charge to import American goods. (Photo by Andrew Harnik/Getty Images)
Getty Images
Solicitor General D. John Sauer had a rough day at the office on November 5. More precisely, he had a rough day at the Supreme Court. This was not his fault. The sharpest minds cannot be blamed for defects in their client’s litigating position.
Two hours and 40 minutes of oral arguments in the combined cases of Trump v. V.O.S. Selections Inc., No. 25-250, and Learning Resources Inc. v. Trump, No. 24-1287, demonstrated that Sauer’s client — President Trump — may soon be in for a rude awakening. This author’s view is that the Court will strike down the tariffs based on the International Emergency Economic Powers Act (IEEPA). (50 U.S.C. section 35.)
That’s not to say Trump cannot win.
He might emerge victorious if a majority of justices were to treat the case as a political exercise. As everyone knows, the Court’s conservatives outnumber its liberals. Trump is emotionally invested in this contest, not merely as a named litigant but because tariffs are his signature economic policy. No U.S. president since William McKinley has been more closely associated with tariffs.
If the justices confine their deliberations to a strict application of law and precedent, shunning political temptations, it’s likely the taxpayers will prevail. There are two separate tracks for invalidating the IEEPA tariffs: a textual argument and a constitutional argument. Either will suffice. The takeaway from oral arguments was that, overall, the justices are skeptical of the government’s legal arguments on both fronts. (Prior coverage: Tax Notes Int’l, Nov. 10, 2025, p. 1038.)
Some unfortunate soul on the White House staff had the task of informing their boss that oral arguments went poorly, prompting the following outburst on social media:
“So, let’s get this straight??? The President of the United States is allowed (and fully approved by Congress!) to stop ALL TRADE with a Foreign County (Which is far more onerous than a Tariff!), and LICENSE a Foreign County, but is not allowed to put a simple Tariff on a Foreign Country, even for purposes of NATIONAL SECURITY. That is NOT what our great Founders had in mind! The whole thing is ridiculous! Other Countries can Tariff us, but we can’t Tariff them??? It is their Dream!!! Businesses are pouring into the USA ONLY BECAUSE OF TARIFFS. HAS THE UNITED STATES SUPREME COURT NOT BEEN TOLD THIS??? WHAT THE HELL IS GOING ON??? President DJT.” [Donald J. Trump (@RealDonaldTrump), Truth Social, Nov. 9, 2025, 6:52 PM]
This language does not reveal the confident demeanor of a person anticipating victory. The defeatist vibe is unmistakable.
Anyone who has litigated a bit can empathize with the unpleasant chore of managing a client’s expectations. What’s curious is that the above moment of lucidity arrived four days after oral arguments. Perhaps the bearers of bad news procrastinated.
Sauer faced an uphill challenge: Convince the Court that Congress, in enacting IEEPA, intended to grant the executive branch the authority to impose tariffs. As a reminder, IEEPA is nearly 50 years old and has been invoked on numerous occasions, but never as the basis for tariffs.
Sometimes a multifaceted legal dispute can be synthesized into a singular proposition. That was so here. Minutes into oral arguments, Sauer made an assertion that provided a fulcrum for all that followed. Trump’s case hinges on the idea that IEEPA tariffs are not fundamentally taxes, but a permissible form of regulation:
Sauer: I want to make a very important distinction here. We don’t contend that what’s being exercised here is the power to tax. It’s the power to regulate foreign commerce. These are regulatory tariffs. They are not revenue-raising tariffs. The fact that they raise revenue is only incidental. [Oral argument transcript at 10.]
That’s it, in a nutshell — the hill on which the government’s lawyers are prepared to die. They contend that IEEPA does not accommodate revenue-raising tariffs, but it happily permits regulatory tariffs. I’d label that a distinction without a difference. A tax is still a tax.
Bear in mind, these tariffs, if left in place, are projected to raise $1.8 trillion in federal tax receipts over the next decade, from 2026-2035. (Erica York and Alex Durante, “Trump Tariffs: Tracking the Economic Impact of the Trump Trade War,” The Tax Foundation, Oct. 31, 2025.)
That’s trillion, not billion, which is a lot of tax revenue for something we’re told isn’t about the dollars and cents.
Indeed, the president’s own Council of Economic Advisers is keen to remind us that tariff receipts are necessary to control the federal deficit in the aftermath of the One Big Beautiful Bill Act. Treasury Secretary Scott Bessent, who attended oral arguments, publicly intimated that IEEPA tariffs are too big to fail. (Prior analysis: Tax Notes Int’l, Sept. 15, 2025, p. 1827.) Trump himself brags about the massive revenue haul as though it were an indicator of his policy’s success. It would be a tad ironic if the tally proved to be a nail in the coffin of IEEPA tariffs.
This column explores excerpts from oral arguments, drawn primarily from the Court’s questioning of the solicitor general. (Prior analysis: Tax Notes Int’l, Nov. 17, 2025, p. 1057.) I’ve highlighted matters raised by each of the nine justices, aiming to provide a partial glimpse into their thinking. I conclude with a prediction. The usual caveat applies: Questions raised from the bench are not necessarily indicative of outcomes.
Justice Thomas
The first question of the day came from Justice Clarence Thomas, the longest-serving member of the current Court. It followed from a claim Sauer made during his opening remarks. After alluding to two “country-killing” crises (opioids and trade deficits), he commented that the major questions doctrine was inapplicable to the current controversy and that the nondelegation doctrine should “cast no doubt on IEEPA.”
You read that correctly. The government’s position is that the Court ought not squander its time on these judicial doctrines. Good luck with that. Based on its recent activity, roughly half the Court is obsessed with elevating the status of these doctrines. Both doctrines are near and dear to the hearts of conservative legal thinkers, who fret about the executive branch wielding powers it should not rightfully possess.
I’d be remiss not to point out that Sauer’s description of trade deficits as a “country killer” is preposterous. To paraphrase the venerable columnist George F. Will, “I have a chronic trade deficit with my barber because I purchase haircuts from him, yet he purchases nothing from me!” For tactical reasons, the taxpayers have chosen not to pursue the matter of what constitutes a legitimate national emergency. The issue remains alive elsewhere, but I digress.
Thomas quizzed Sauer on why the Court should ignore the major questions doctrine:
Associate US Supreme Court Justice Clarence Thomas poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
AFP via Getty Images
Thomas: Would you spend a few minutes on why exactly the major questions doctrine doesn’t apply to the president in this case? [Oral argument transcript at 6.]
There’s been much discussion of the major questions doctrine in recent years, highlighted by the Court’s landmark decisions in two Biden-era cases: West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022), concerning the attempted regulation of coal emissions under the Clean Air Act; and Biden v. Nebraska, 600 U.S. 477 (2023), concerning a student loan forgiveness program that relied on the HEROES Act of 2003. In both instances, the doctrine was employed to thwart overreach on the part of the Biden administration. Set against that background, Sauer’s assertion that the doctrine has no place in the current dispute over tariffs is bold stuff.
A fair articulation of the doctrine is that Congress must not carelessly divest itself of a constitutionally conferred legislative power (such as the power to tax) by transferring it to the executive branch — at least not without providing clear and explicit authorization. A kindred spirit, the nondelegation doctrine holds that Congress cannot delegate its Article I legislative powers to the executive branch without articulating “intelligible principles” to inform and guide how those powers shall be exercised. (Prior analysis: Tax Notes Federal, June 2, 2025, p. 1717.)
U.S. trade policy has a way of reaching the distant corners of the globe; as a result, much of the world has been waiting to hear how the government intends to reconcile these doctrines with Trump’s IEEPA tariffs. Assuming they apply to Trump’s actions with the same vigor that was applied to Biden’s, you’d figure the tariffs are at serious risk of invalidation. Yet the government’s tactic is to evade these doctrines, telling the Court they don’t apply.
Sauer knew he’d be grilled over this approach. He acknowledged the major questions doctrine may apply to presidential actions in other circumstances, but not in this context. That’s because the government conceives the dispute as being essentially about foreign relations, a subject matter over which the presidency holds an acknowledged competency. Sauer explained, as follows:
Sauer: First of all, though the major questions doctrine may apply to the president in other contexts, specifically in the foreign affairs context, where he has his own inherent Article II authority, it’s a particularly poor fit to apply the major questions doctrine. [Oral argument transcript at 6.]
He went on to describe a “commonsense” interpretation, whereby we’d expect Congress to grant powers to the president that overlap with the Article II powers he already possesses. There was no attempt to explain away the redundancy. He described the delegation as “just sort of a natural, common-sense thing you expect Congress to do.” (Oral argument transcript at 7.)
I wonder if that argument will ultimately do Trump more harm than good. The justices may reckon there’s nothing “natural” about legislation that confers rights the president already possesses directly from the Constitution. If anything, the tendency among jurists is to presume that acts of Congress are not superfluous endeavors.
Thomas remained silent during this discourse, though several other justices were visibly troubled by the inadequacy of the government’s reasoning. I’ll interpret Thomas’s lack of criticism as tacit approval of the solicitor general’s argument that the major questions doctrine can be swept under the rug. That’s one vote to sustain Trump’s tariffs.
Justice Kagan
Justice Elena Kagan interrupted Sauer as he responded to Thomas. She was stuck on the peculiar justification for dispensing with the major questions doctrine:
Kagan: Can I interrupt you. . . . I’m wondering what exactly . . . which powers you’re speaking of there, because tariffs, one would naturally think, are the power to impose taxes, the power to regulate foreign commerce. These are not things that are thought of as Article II powers. They are quintessential Article I powers. So what kind of Article II powers are you relying on when you gave the answer about major questions to Justice Thomas? [Oral argument transcript at 8-9.]
This allowed Sauer to expand on the novel theory. He spoke of dual layers of authorization.
First, a figurative base layer consisting of the president’s Article II power to conduct foreign relations. On top of that, a secondary layer of statutory authorization (IEEPA) by which Congress empowers the president to engage in these activities (including tariffs) as steps toward conducting foreign relations.
“Now we don’t contend that he has — he has at least in peacetime inherent tariffing authority,” Sauer added. (Oral argument transcript at 9.)
The government’s position is that, in peacetime, the tariff authority rests exclusively with Congress; however, in times of declared emergency, Congress has assigned tariff authority to the president through IEEPA. Kagan wasn’t buying it.
According to the nonpartisan Congressional Research Service, U.S. presidents have declared 77 emergencies under IEEPA since its enactment in 1977, and 46 of those declared emergencies remain in effect (as of September 2025). (Christopher A. Casey, Jennifer K. Elsea, and Liana W. Rosen, “The International Emergency Economic Powers Act: Origins, Evolution, and Use,” Congressional Research Service Report R45618 (Sept. 1, 2025).) Some of these so-called emergencies have been in effect for decades. The resulting picture is that, once declared, there’s greater than a 50 percent statistical probability that the emergency never recedes.
The significance is that Sauer’s contention that Congress exclusively retains the taxing power only in peacetime is tantamount to near-permanent delegation to the executive branch. Under such a framework, the nation is seldom (or never) not living through a declared emergency. I doubt the architects of IEEPA intended for the statute to operate as a generic excuse for the accretion of legislative competencies to the president.
Sauer relied on Dames & Moore v. Regan, 453 U.S. 654 (1981), one of the few IEEPA cases to ever reach the Supreme Court. It involved President Carter’s use of IEEPA to freeze Iranian assets in the wake of the 1979 Iranian hostage crisis (Executive Order No. 12294). There, the plaintiff was an engineering firm that had performed professional services for the shah’s government without being fully compensated. It brought a creditor’s claim against Iranian financial assets invested in the U.S. financial sector. Carter’s asset freeze effectively blocked the firm’s collection effort by nullifying a court-ordered attachment proceeding.
The government prevailed in an 8-1 decision, authored by former Chief Justice William Rehnquist. The decision has been criticized as an atypical display of deference toward presidential actions. The concern was that nothing in IEEPA expressly mentions an authority to set aside attachment or garnishment procedures approved by a domestic court. In the tariff context, the government hopes the Court will afford this administration the same leeway that the Rehnquist court afforded the Carter administration.
The difficulty with reliance on Dames & Moore is twofold. First, it never came close to touching on taxes or tariffs. It was solely concerned with the president’s nullification of a civil attachment order. It’s a stretch to argue that deference to the freezing of foreign assets tells us much about the suitability of equivalent deference for the imposition of tariffs. Second, Rehnquist made a point to emphasize the narrow scope of the Court’s decision. He described it as resting on “the narrowest possible ground capable of deciding the case,” adding that “we attempt to lay down no general ‘guidelines’ covering other situations not involved here.”
It’s hard to interpret Dames & Moore as precedent for a tariff authority when the Court itself seems to caution against making such an inference.
Kagan inquired about limitations, if any, on presidential tax authority if IEEPA is to be construed as the government suggests:
“In Consumers’ Research just last year, we had a tax before us, and the question was, was this a delegation issue? It was, of course, a much smaller tax which dealt with many fewer taxpayers. Notwithstanding that, we said, if there’s no ceiling on this tax, we sort of assumed that if there were no ceiling on this tax, it would raise a delegation problem. . . . But how does your argument fit with the idea that a tax with no ceiling, a tax that can be anything, that here the president wants, there an agency wants, would raise a pretty deep delegation problem?” [Oral argument transcript at 57-58.]
Kagan was referring to Federal Communications Commission v. Consumers’ Research, 606 U.S. 656 (2025), which upheld the universal service fund, a fee and subsidy framework that functioned like a tax.
Sauer offered a familiar refrain. There was no need to address ceilings or limitations because Consumers’ Research has no bearing on the current dispute. This is not a tax case; these are regulatory tariffs.
Kagan was not satisfied. I’d bet the ranch she will not support Trump’s IEEPA tariffs, probably on textual grounds. That’s one vote for the taxpayers.
Justice Sotomayor
Justice Sonia Sotomayor earns my award for “most skeptical jurist” of the day. Among other things, she was troubled by the government’s claim that import quotas were tariff equivalents. Sauer had raised the equivalence, noting that the taxpayers failed to object to the use of executive nullifications or import quotas as permissible uses of IEEPA. That forced an interruption:
Sotomayor: Counsel. . . . I just don’t understand this argument. It’s not an article. It’s a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that’s exactly what they are. They’re generating money from American citizens, revenue. And you say it’s incidental to the regulatory purpose. But I don’t see how a quota is equivalent to revenue-raising. A quota sets a limit to what you can import in, but it doesn’t generate revenue. I . . . don’t understand this argument that it’s equivalent or that foreign powers or even an emergency can do away with the major questions doctrine. [Oral argument transcript at 12-13.]
Sauer said the Court has never applied the major questions doctrine to a foreign relations question. What about applying the doctrine to the imposition of a federal tax? Immaterial, per Sauer. His unyielding stance was that this was not a tax case.
WASHINGTON, DC – DECEMBER 18: Supreme Court Justice Sonia Sotomayor speaks during a service for retired Supreme Court Justice Sandra Day O’Connor in the Great Hall at the Supreme Court December 18, 2023 in Washington, DC. O’Connor, the first woman appointed to be a justice on the U.S. Supreme Court, died at 93 on December 1. (Photo by Jacquelyn Martin-Pool/Getty Images)
Getty Images
Sotomayor tried to pin down Sauer on the tax element. He’d only go as far as to concede that the case involved “a foreign-facing regulation of foreign commerce . . . distinct from a tax.” (Oral argument transcript at 13-14.)
Sotomayor tested Sauer on where his argument would lead if drawn to its logical conclusion. For example, could Biden have declared an international emergency (say, global climate change) and used that as the basis for his program of student loan forgiveness, relying on the foreign-facing character of the crisis? Stated differently, could any executive action, however bizarre, unprecedented, or extreme, pass muster by cutting and pasting a “foreign relations” tag to the purported crisis? Is that not too easy a means of dodging the major questions doctrine?
Sauer denied that was the case, calling it unlikely such an emergency would have aided Biden’s effort. Sotomayor pressed him as to why that would be so, given the foreign-facing nature of the crisis. Sauer responded that the setting of tariffs was a special case, a “core application” of the power to regulate foreign trade. In contrast, the forgiveness of student debt is not central to any foreign-facing pursuit.
Sotomayor wasn’t finished. She quizzed Sauer on why IEEPA doesn’t mention the word “tariff.” It was the first of several instances where the statutory omission was discussed:
Sotomayor: Could you tell me why it is that when Congress intended to permit a president to regulate by imposing tariffs, it’s always used “tariff” and “regulate.” I have about 16 laws in the past that when Congress intended “regulate” to mean taxing, that it used taxes simultaneously — But it didn’t here. [Oral argument transcript at 15.]
Sotomayor posed the question on at least three occasions, a clue that she found his answer unpersuasive.
At one point, Sauer countered that the Court had reached the “opposite conclusion” in Federal Energy Administration v. Algonquin SNG Inc., 426 U.S. 548 (1976). The extent to which the Algonquin decision helps Trump’s tariffs proved to be a sticking point to which other justices would return.
Algonquin involved an energy company’s challenge to a set of license fees charged on oil imports under the Trade Expansion Act of 1962. In 1973 President Nixon tasked his Cabinet with investigating whether the federal government’s Mandatory Oil Import Program (MOIP) was fulfilling its strategic objectives. This occurred at a time when domestic oil consumption exceeded domestic production, creating a national security concern.
Past presidents Kennedy and Johnson engaged in similar reviews, concluding that the import quotas needed to be raised. It was a sign that domestic production was not keeping pace with demand despite the presence of tariffs, which drove up the cost of imported oil. Nixon responded with sweeping amendments to the MOIP program, which saw the existing tariff structure replaced with a framework of increasing license fees applied to imported oil and oil derivatives.
A few years later, after Nixon’s resignation, President Ford conducted a similar review and concluded the domestic oil sector required further economic incentives, prompting him to increase the number of import licenses, based on the same statutory authority. The oil company challenged the move as going beyond what the Trade Expansion Act permitted. The Court eventually upheld Ford’s actions as consistent with the statute.
Sotomayor was unimpressed. She noted that IEEPA refers to the regulation of trade in the conjunctive, as to both “importation and exportation,” yet the Constitution expressly prohibits export taxes, raising an apparent inconsistency:
Sotomayor: Alright. So why should we think that it’s natural then to think that “regulate importation” includes taxing importations? . . . It’s in the conjunctive, “importations and exportations.” If they can’t do it with respect to import [sic] — exportations, why are we permitting them to do it with respect to importations? [Oral argument transcript at 32.]
If lawmakers intended for “regulate” — as used in IEEPA — to encompass tariffs, it’s odd that they would have then conceived of such activity as potentially applying to both imports and exports. Again, the Constitution flatly prohibits export taxes.
Sauer countered that IEEPA’s statutory language implies an “inherent power to tariff,” and this is apparent from an appreciation of “historical pedigree.”
Over the course of the day, Sauer repeatedly called on the Court to respect “pedigree” — usually when the government was backed into a corner. I doubt how effective it was as a legal argument. Most of the justices sought a theory with more meat on the bone.
It’s a near certainty that Sotomayor is ready to invalidate IEEPA tariffs. As with Kagan, this would be on textual grounds, without finding it necessary to rely on the major questions doctrine.
Justice Barrett
Justice Amy Coney Barrett was unimpressed with Sauer’s response to Sotomayor’s question, above, on IEEPA’s textual omission. She repeated the same question at least twice:
Barrett: General Sauer, can I just ask you a question? 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? [Oral argument transcript at 25.]
Sauer claimed two sources of textual support: the Trade Expansion Act of 1962, as litigated in Algonquin, and the Trading With the Enemies Act of 1917 (TWEA) (50 U.S.C. section 53), as litigated in the Yoshida series of decisions. (United States v. Yoshida Int’l Inc., 526 F.2d 560 (C.P.P.A 1975).) Barrett shot down the first of these sources, casting doubt on the Trade Expansion Act as appropriate support. In her view, the government had a single conforming example: TWEA.
TWEA has been repealed and is remembered as a kind of predecessor to IEEPA. It authorized the president to:
“investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest.” [50 U.S.C. section 4305(b)(1)(b).]
The above authorization is very similar to that of IEEPA and notable for a shared silence on tariffs. It’s helpful to the government’s effort that courts once found a tariff authority in TWEA, as discussed later.
Sauer also drew upon the dicta of Gibbons v. Ogden, 22 U.S. 1 (1824), a commerce clause case involving interstate coastal navigation, and McGoldrick v. Gulf Oil Corp., 309 U.S. 414 (1940), a duty dispute involving the Revenue Act of 1932. Those cases suggest the scope of a phrase like “regulate commerce” could plausibly be taken to include tariffs.
Barrett questioned the presumed equivalence between a tariff and a licensing fee (accompanying an import license), as featured in Algonquin and the earlier case of Hamilton v. Dillin, 88 U.S. 73 (1874).
Dillin was a Civil War dispute concerning the unusual situation of the Union allowing the “importation” of cotton from the Confederacy, which was deemed a foreign jurisdiction for trade purposes. The cotton imports were allowed subject to the payment of an import license fee, which economically resembled a tariff. After the war, a Northern importer sued for recovery, arguing the Lincoln administration exceeded its authority in imposing the fee.
In theory, Dillin supports the government’s case by establishing that trade restrictions, such as quotas and license fees, are permissible forms of regulating trade. And since license fees are similar to tariffs, it might follow that tariffs should similarly be regarded as falling under the catchall concept of “regulating” trade:
Barrett: So tell me — tell me what the distinction is between licenses and fees and [tariffs] if it matters.
Sauer: It’s hard for me to see one. [Oral argument transcript at 46.]
Barrett asked why the Trump administration wasn’t using license fees, in lieu of tariffs, to achieve its trade policy objectives. For that matter, why hasn’t the federal government, since the earliest days of the republic — starting with the Tariff Act of 1789 — used license fees in lieu of tariffs? That it has not suggests the two things aren’t strict equivalents.
At one point, the verbal exchange between Barrett and Sauer veered off into the qualitative attributes of certain verbs.
Sauer told the Court that verbs appearing in the text of IEEPA were “capacious” and therefore subject to an exceptionally broad and generous reading. In short, he was saying the Court shouldn’t get hung up on a single missing word (“tariffs”) because Congress’s choice of verbs lent itself to an expansive interpretation:
WASHINGTON, DC – OCTOBER 21: Supreme Court nominee Judge Amy Coney Barrett participates in a photo op with Sen. Martha McSally (R-Ariz.) in the Mansfield Room of the U.S. Capitol prior to their meeting on October 21, 2020 in Washington, DC. Senate Republicans are looking to hold a confirmation vote for Supreme Court nominee Amy Coney Barrett on Monday, October 26, approximately one week before the presidential election. (Photo by Greg Nash-Pool/Getty Images)
Getty Images
Barrett: So you’ve referred to the other verbs in IEEPA as capacious. Would you really describe them as capacious? Because, to me, things like “nullify” and “void” have definite meanings. I agree with you that “regulate” is a broader term. But those words, I think, are powerful. They give — they pack a punch. But I wouldn’t describe them as “capacious” in the sense that they have a wide range of meanings. So can you describe what you mean by “capacious”? [Oral argument transcript at 28-29.]
There’s a partial overlap of verbs used in TWEA and IEEPA, causing many to ascribe interpretive significance to which verbs carried over and which did not. Sauer took pains to sort these verbs into qualitative groupings. There were negative verbs (“nullify,” “block,” “void,” and “prohibit”), more affirmative verbs (“direct” and “compel”), and a scattering of intermediate verbs (“investigate” and “regulate”).
Give him an A+ for fastidiousness, but the wordsmithing got him nowhere. For Barrett, none of the verbs were capacious enough to make up for IEEPA’s silence on tariffs. It shouldn’t matter that Sauer lost Barrett on the verbiage; I suspect that he already lost her on the merits.
If you’re keeping score, that makes the count: Taxpayers 3, Trump 1.
Chief Justice Roberts
Chief Justice John Roberts chimed in to challenge Sauer on one of his earlier points. It was his contention that the major questions doctrine was not applicable (hint — nobody was buying it):
Roberts: Some time ago you dismissed the applicability of the major questions doctrine, and I — I want — want you to explain that a little bit more. I mean, it seems that it might be directly applicable. [Oral argument transcript at 33-34.]
That’s basically the same question Thomas asked out of the gate, and which Kagan already repeated. This was the third go-around, and it wouldn’t be the last.
As observers, we should examine why the government chose to run away from the major questions doctrine. An alternative strategy might have been to concede that the doctrine applies and then devote all of one’s energy to winning on it. That was a nonstarter.
Sauer agreed that a president’s ability to conduct foreign relations is “a major power.” He acknowledged it would be “unusual” to look at the statute and not find a major power there. Yet he argues the accompanying judicial doctrine does not apply. The professed reason for that relates to what he described as the “context” of the statute, which is to “explicitly” confer a major power:
Sauer: The point of the statute is to confer major powers to address major questions, which are emergencies. [Oral argument transcript at 34.]
Normally, that would indicate the doctrine is directly applicable. The factor that flips the script is that the power being exercised is, supposedly, rooted in Article II (foreign relations). Roberts still wasn’t satisfied:
Roberts: Well, but the exercise of the power is to impose tariffs, right? And the statute doesn’t use the word “tariffs.” [Oral argument transcript at 35.]
And later:
Roberts: Yes, of course, tariffs and dealings with foreign powers, but the vehicle is imposition of taxes on — on Americans, and that has always been the core power of Congress. [Oral argument transcript at 37.]
From there, the discourse spiraled into competing statements about who “pays” tariffs, with Sauer and Roberts talking past each other. Roberts noted that taxes are directly paid by U.S. importers. Sauer countered that some unknown portion of the economic burden is shifted to foreign exporters. That’s less than a 20 percent share, according to recent analysis by the Wall Street firm Goldman Sachs. (Nick Lichtenberg, “Goldman Sachs Doubles Down on Tariff Research That Infuriated Trump, Saying Average Americans Will Bear Two-Thirds of the Costs,” Fortune, Aug. 13, 2025.) Roberts followed up:
Roberts: Well, who pays the tariffs? If a tariff is imposed on . . . automobiles, who pays them? [Oral argument transcript at 37.]
The literal answer is that U.S. importers always pay the tariff; otherwise, the imported item won’t clear customs and enter the domestic market. Sauer looks beyond the point of entry, fixating on the economic burden, which is often passed off to a combination of other parties (domestic wholesalers, domestic retailers, domestic consumers, or foreign exporters). Sauer noted that some U.S. importers are wholly owned subsidiaries of foreign corporations, which is obviously true, but beside the point of the chief justice’s question.
The issue proved to be a sideshow. It’s obviously true that U.S. importers pass some portion of their tariff burden to others. For Roberts, the salient point is that that doesn’t make tariffs less of a tax. A movable economic burden doesn’t negate the taxing power being exercised.
Roberts nudged the government to concede that tariffs are a tax. Sauer declined to bite on it, probably out of rational self-interest. In the Trump administration, to publicly admit that tariffs are taxes (a self-evident truth) is an ill-advised concession:
Roberts: I mean, it’s been suggested that the tariffs are responsible for significant reduction in our deficit. I would say that’s raising revenue domestically.
Sauer: There — there certainly is incidental and collateral effect of the tariffs that they do raise revenue, but it’s very important that they are regulatory tariffs, not revenue-raising tariffs. [Oral argument transcript at 38.]
Go ahead and scream it from the mountaintop: These are not revenue-raising tariffs. Few people who have lived through 2025 will believe they are, least of all the chief justice. My remaining doubt as to Roberts is whether he would join the aforementioned justices in rejecting IEEPA tariffs on purely textual grounds, or whether he’d branch off in a concurrence to base invalidation on constitutional grounds.
That’s two conservatives — Barrett and Roberts — who weren’t buying what the solicitor general was selling.
Score: Taxpayers 4, Trump 1.
Justice Jackson
Justice Ketanji Brown Jackson had a different problem with the government case. It concerned the role of legislative history.
On multiple occasions, Sauer suggested that a heightened awareness of America’s fiscal history, sometimes stretching back “hundreds of years,” would support Trump’s reliance on IEEPA. Jackson noted that a careful reading of the relevant legislative history leads to the opposite conclusion. It was a battle of historical perspectives: one technical, the other amorphous.
The legislative history of IEEPA doesn’t reflect any congressional desire to delegate tariff authority, but of a general desire to limit the power previously delegated under TWEA. (S. Rep. No. 95-466 (1977).) (Prior analysis: Tax Notes Federal, Nov. 10, 2025, p. 927.) It speaks of banning imports, blocking exports, and freezing assets, which are the ways IEEPA has traditionally been used by other presidents:
Judge Ketanji Brown Jackson testifies on her nomination to become an Associate Justice of the US Supreme Court during a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, DC, on March 22, 2022. (Photo by MANDEL NGAN / POOL / AFP) (Photo by MANDEL NGAN/POOL/AFP via Getty Images)
POOL/AFP via Getty Images
Jackson: It said that what we are doing is authorizing the president, in the Senate report, “to control or freeze property transactions where a foreign interest is involved.” There’s similar language about controlling, freezing control, in the House report. So I appreciate that generally you can look at these words and you can imagine that they mean certain things, but, here, we have evidence that Congress was actually trying to do a particular thing with respect to the authority that it was presenting to the president, and that thing was not raising revenue. [Oral argument transcript at 41.]
And later:
Jackson: And when I look at the legislative history, it appears as though Congress was trying to give the president the authority to “control or freeze property transactions where a foreign interest is involved.” And in the TWEA context, that makes perfect sense because we’re talking about a wartime dynamic, and — and what is happening is the president needs the authority to prevent trading with the enemy in the midst of a war. And that seems to be the focus of the statute.
So I guess I’m concerned about just sort of taking a particular word here and there and saying that the general view of it might include raising revenue when, in fact, it looks as though the aim of this was really to give the president a certain kind of authority, to freeze the assets of — of the enemy. [Oral argument transcript at 42.]
Jackson saw an awkwardness. The government evokes vagaries from the historical past while steering clear of the actual legislative history. The contemporaneous House and Senate reports on IEEPA do not support Trump’s case; they hurt it.
These days, the Court tends to assign less weight to legislative history in general. It’s less swayed by efforts to forensically decipher Congress’s intent, and more inclined to derive statutory meaning directly from statutory text. That suits the taxpayers just fine.
I can report with reasonable confidence that Jackson will side with the taxpayers on textual grounds, like Kagan and Sotomayor: Taxpayers 5, Trump 1.
Justice Alito
The government may have found a sympathetic ear in Justice Samuel Alito, who wanted to hear more about the Yoshida series of decisions.
These cases concern the temporary supplemental tariffs that Nixon imposed in 1971 in response to a currency crisis triggered by the winding down of the gold standard and the U.S. dollar’s sudden overvaluation relative to major foreign currencies. The tariffs were promptly withdrawn once the crisis had been averted through the negotiation of the Smithsonian Accords.
Yoshida International was a New York-based importer of foreign-made zippers, which the company supplied to domestic clothing manufacturers. It sued for a tariff refund, claiming the Nixon administration lacked the statutory authority to impose the tax. (Prior analysis: Tax Notes Int’l, Mar. 31, 2025, p. 2229.) The government’s defense relied on TWEA, which had language almost identical to IEEPA. Significantly, neither TWEA nor IEEPA expressly mentions tariffs. Nixon had not initially based the tariffs on TWEA. The statute was raised after the fact, during litigation, when Nixon’s original justification proved problematic.
The U.S. Court of Customs and Patent Appeals (CCPA) accepted the government’s reliance on TWEA, ruling in Nixon’s favor. However, the court warned that the president could not “impose whatever tariff rates he deems desirable simply by declaring a national emergency.” (United States v. Yoshida Int’l Inc., 526 F.2d 560 (1975).) The CCPA isn’t around anymore; it was folded into the Federal Circuit in 1982. It was the Federal Circuit that affirmed the Court of International Trade in V.O.S. Selections. The companion case, Learning Resources, came through the D.C. Circuit.
On the one hand, the Yoshida court declined to invalidate Nixon’s tariffs — finding a tariff authority in TWEA despite the textual omission. On the other hand, the CCPA handed down the following cautionary passage:
But neither need nor national emergency will justify the exercise of a power by the Executive not inherent in his office nor delegated by the Congress. Expedience cannot justify the means by which a deserving and beneficial national result is accomplished. To indulge in judicial rationalization in order to sanction the exercise of a power where no power in fact exists is to strike the deadliest of blows to our Constitution.
Sauer offered a handy approach for reconciling the apparent conflict. Congress, in enacting IEEPA, was effectively codifying the holding in Yoshida — including an implied (but unspoken) tariff authority. The cautionary language above relates to that portion of TWEA that was repealed without being transposed into IEEPA. In short, the cautionary language can be safely ignored.
That nuanced interpretation is generous to the government’s position. I suspect it’s enough to secure Alito, who was troubled by the taxpayers’ concession that IEEPA could properly be used to impose trade embargoes and trade quotas, and even to regulate trade by means of restricting import licenses. There’s scant difference between a license fee and a tariff, as both amount to an economic extraction by the state from an importer.
Score: Taxpayers 5, Trump 2.
Justice Gorsuch
If the major questions and nondelegation doctrines have a singular champion on the Supreme Court, it’s probably Justice Neil Gorsuch. This is evident from his passionate dissent in Gundy v. United States, 588 U.S. 128 (2019), a nontax case in which he warned of “delegation running riot,” borrowing a line from Justice Cardozo.
Gundy seemed a painful decision for Gorsuch because there was no majority. Kavanaugh had recused himself, leaving an eight-member bench that was split 4-4. And to make matters worse, Alito wrote a concurring opinion that (inexplicably) voiced support for Gorsuch’s dissent without bothering to join it.
Gorsuch also dissented in Consumers’ Research (joined by Thomas and Alito), finding that Congress had not properly authorized the FCC to establish and enforce the universal service fund, which he treated as a tax. The statute in question flunked Gorsuch’s stringent application of the nondelegation doctrine, failing to lay out the requisite intelligible principles. He began his dissent with a passage from The Federalist Papers (Federalist No. 48), insisting that “Congress ‘alone has access to the pockets of the people’.”
If that’s how seriously Gorsuch took the doctrine when applied to a pseudo-tax case, imagine how he might feel about its application to an actual tax case, involving many billions of dollars of tariff revenue.
When given the opportunity, he immediately returned to the major questions doctrine, testing the limits of Sauer’s claim that it doesn’t apply:
Gorsuch: So could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit . . . to lay and collect duties as he sees fit?
Sauer: We don’t assert that here. That would be a much harder case. . . .
Gorsuch: Isn’t that the logic of your — of your view, though?
Sauer: I don’t think so. [Oral argument transcript at 63-64.]
And later:
Gorsuch: I want you to explain to me how you draw the line, because you say we shouldn’t be concerned because this is foreign affairs, the president has inherent authority, and so delegation [is] off the books more or less . . . And if that’s true, what would — what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, [the power to] declare war to the president?
Sauer: We don’t contend that he could do that. . . .
Gorsuch: Why not?
Sauer: Well, because we’re dealing with a statute, again, that has a whole list of limitations.
Gorsuch: I’m not asking about the statute. General, I’m not asking about the statute. I’m asking for your theory of the Constitution. [Oral argument transcript at 64-65.]
That is quintessential Gorsuch. Given his track record, I can’t imagine him going along with the government’s line that the major questions and nondelegation doctrines have no role to play here. You’d figure Gorsuch will be the first to insist the doctrines are highly relevant and must be rigorously applied — especially in a tax case:
Gorsuch: Could the president impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?
Sauer: It’s very likely that that could be done, very likely.
Gorsuch: I think that has to be the logic of your view.
Sauer: Yeah. In other words, I mean, obviously, this administration would say that’s a hoax, it’s not a real crisis, but — but, obviously . . .
Gorsuch: I’m sure you would. [Oral argument transcript at 69.]
Gorsuch commented on what it would take for Congress to retrieve its Article I taxing power, after having delegated it to the president, as the government contends was done via IEEPA. Congress could pass a subsequent measure — effectively clawing back its previous authorization — that’s likely to meet with a presidential veto:
Gorsuch: But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the president signs it — and, of course, every president will sign a law that gives him more authority [but] Congress can’t take that back without a supermajority. . . . What president is ever going to give that power back? A pretty rare president. So how should that inform our view of delegations and major questions? [Oral argument transcript at 72.]
Sauer noted that congressional retrieval of delegated powers is neither impossible nor unheard of. In January 2023 Congress voted to end the emergency powers previously delegated during the COVID-19 pandemic, and Biden went along with it.
WASHINGTON, DC – APRIL 23: Associate Justice Neil Gorsuch stands during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. (Photo by Erin Schaff-Pool/Getty Images)
Getty Images
Gorsuch asked what would happen if Trump declined to replicate that “rare” behavior. He argued that, as a practical matter, once Congress delegates powers, it’s unlikely to ever regain them, absent a veto-proof majority. For that reason, Gorsuch likened the delegation process to a “one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.” (Oral argument transcript at 74.)
Gorsuch is a conservative guy. Yet he might prove to be the harshest critic of Trump’s IEEPA tariffs, specifically because of his judicial conservatism. I expect him to find in favor of the taxpayers and probably write his own concurrence in the event the majority bases their decision on the textual argument. One gets the sense that Gorsuch is itching to reject IEEPA tariffs on constitutional grounds as a means of dismantling executive overreach. His powerful metaphor (the “one-way ratchet”) looms large.
Score: Taxpayers 6, Trump 2.
Justice Kavanaugh
Earlier in the proceedings, Justice Brett Kavanaugh also asked about Yoshida, saying, “I think figuring that out is real important to deciding this case correctly.” (Oral argument transcript at 23.)
Later, he returned to the topic, asking what Congress was thinking when it enacted IEEPA just a few years after the Yoshida decision. Sauer answered that Congress was implicitly attempting to codify Yoshida when it enacted IEEPA, claiming the historical case for that was strong. If the government is correct about that, all presidents since 1977 have squandered the opportunity to use IEEPA along the lines that Congress intended:
Kavanaugh: Why do you think Presidents Clinton, Bush, Obama have not used IEEPA to impose tariffs — because there have been trade disputes and, certainly, you know, President Bush, steel imports and the like. Why do you think IEEPA has not been used? [Oral argument transcript at 78.]
Sauer replied that for the 69 occasions where IEEPA has been invoked, tariffs would not have been a suitable response — a poor fit to resolving the declared emergency. Of course, that’s not what Kavanaugh had asked. He had inquired about the situations where IEEPA had not been used, despite a trade conflict presenting itself at the time.
Kavanaugh asked why the relevant statutory language from Algonquin (“adjust imports”) should be construed differently than the language in IEEPA (“regulate imports”). Sauer explained that “adjust” is narrower than “regulate,” and it follows that the greater competency includes the lesser, such that IEEPA authorizes a broader range of actions.
Like Alito, Kavanaugh was drawn to the natural parallels between license fees and tariffs. The government contends that IEEPA cannot be read as permitting the former but not the latter. This seemed to strike a chord with Kavanaugh, notwithstanding the rebuttal that there’s a meaningful difference between the state’s denial of an import (or export) license and the assessment of license fees. This one’s a toss-up. I’ll lump Kavanaugh together with Gorsuch and Roberts, ceding the textual argument and instead invalidating the tariffs over a constitutional failing.
Prognostications
That’s the prediction: Taxpayers 7, Trump 2. Game over.
At least four justices appear onboard with invalidating IEEPA tariffs on purely textual grounds (Kagan, Sotomayor, Jackson, and Barrett). Another three (Gorsuch, Kavanaugh, and Roberts) seem ready to reject the tariffs due to a constitutional defect, a combination of the major questions doctrine, or the nondelegation doctrine. That leaves two justices (Thomas and Alito) to the dissent.
The US Supreme Court is seen in Washington, DC on November 4, 2025. The US Supreme Court is set to hear arguments on November 5 on the legality of President Donald Trump’s unprecedented use of powers for sweeping global tariffs. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
AFP via Getty Images
I encourage interested readers to read or listen to the transcripts for themselves and arrive at their own impressions. Mine is that the solicitor general argued brilliantly but failed to overcome IEEPA’s silence on the matter of tariffs. Repeated allusions to historical pedigree aren’t going to cut it with the Court, and the precedent of Yoshida is nuanced enough to be distinguishable from the current facts.
In short, the government’s lawyers brought a nontextual knife to a textualist gunfight.
Given that Trump’s IEEPA tariffs are still in full effect (actively raking in around $20 billion a month, one hopes the Court won’t wait until the end of term to issue its decision. Time is (tariff) money, as they say.
Should that come to pass, we’d see the combined cases remanded to the Federal Circuit (V.O.S. Selections) and the D.C. Circuit (Learning Resources), respectively, to address the thorny matter of remedies. The preferred remedy would see the Harmonized Tariff Schedule promptly revised to reflect that all IEEPA tariffs are rescinded. That would include the tariffs stemming from the five executive orders central to the dispute, as well as other IEEPA tariffs subsequently imposed by the administration.
If Trump wishes to continue with his aggressive tariff policy — as I suspect he would — he would be free to do so if he sticks to acceptable routes and settled authorization. Bessent has already hinted that Trump could start from scratch and impose equivalent tariffs by proceeding through section 338 of the Smoot-Hawley Tariff Act of 1930. (Ashleigh Fields, “Bessent: Trump Administration Has Backup Plan If Supreme Court Rules Unfavorably on Tariffs,” The Hill, Sept. 2, 2025.) Arguably, Trump should have done that in the first place, rather than experiment with the novelty of IEEPA tariffs.
Once the dust settles, we can ponder how the federal government should go about the Herculean task of issuing tariff refunds to the many thousands of aggrieved importers that have paid IEEPA tariffs. That’s a process that could take months to effectuate. The IRS is in the practice of issuing tax refunds on a mass scale. U.S. Customs and Border Protection, which collects tariffs, is not.
