One day after a Democratic Party romp in off-cycle elections across the country, President Donald Trump’s bad week got even worse when the Supreme Court heard arguments in a challenge to his sweeping use of emergency powers to impose tariffs on nearly every country in the world. It didn’t go well for the president.
During oral arguments Wednesday, the justices expressed extreme skepticism toward Solicitor General D. John Sauer’s argument that the court could not question whether Congress delegated its tariffing power to the president in the International Emergency Economic Powers Act because it touched on his inherent foreign affairs powers.
This skepticism didn’t just come from the liberals — who more or less argued that the administration’s arguments made no sense — but also from conservatives like Chief Justice John Roberts and Trump-appointed Justices Neil Gorsuch and Amy Coney Barrett.
“The vehicle [of tariffs] is the imposition of taxes on Americans, and that has always been the core power of Congress,” Roberts said. Allowing the president’s foreign affairs power to “neutralize” that would destroy the separation of powers between the branches, he added.
It looks more than likely that the court will take away one of Trump’s favorite toys, a move he claims will “destroy” the country.
Such a decision would mark the clearest case of the court breaking with Trump since he won back the White House in the 2024 election. In case after case, the court’s conservatives have found ways to accommodate Trump’s extreme policies, often falling back on procedural arguments that keep those policies in place without having to explicitly rule on them.
This potential break, on one of Trump’s two signature policies, would be a major check on the second Trump administration and its unilateral vision of power. So, why now and why in this case?
!["The vehicle [of tariffs] is the imposition of taxes on Americans and that has always been the core power of Congress," Chief Justice John Roberts said.](https://img.huffingtonpost.com/asset/690bb0c62300001140be2597.jpeg?ops=scalefit_1440&format=webp)
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There are two possible explanations. First, the conservatives are clearly wary of allowing the president too much leeway to interfere with the economy. This has already come up in Slaughter v. Trump, where the administration asserts that Congress cannot protect independent agency officials by allowing the president only to fire them for cause. The court’s conservatives have all but stated they will overturn the nearly century-old precedent in Humphrey’s Executor v. U.S. that allowed for cause protections. But they made sure to allow one key exception: Federal Reserve governors could keep those protections.
This argument makes little sense on the logic, as the Federal Reserve is an independent agency housed within the executive, just like any other, even if it draws its own budget. But Trump has been champing at the bit to fire Federal Reserve Chair Jerome Powell and tried to fire board member Lisa Cook, a Democratic appointee, over trumped-up charges of mortgage fraud. The court’s conservatives clearly see political control of the Fed as a threat to economic stability, so they’re willing to craft a carve-out even if it makes no legal sense.
The tariff case is a bit more clear-cut from a legal perspective, but it is also another factor that shows the conservatives are more wary about the president tinkering with the economy on an ideological basis or pure whim, like, say, getting mad about an ad run by a Canadian province.
This fear of presidential meddling in the economy dovetails with the second reason the court may finally check Trump. The conservatives may want to preserve the major questions doctrine, which they have used to quash presidential policymaking in Democratic administrations, in preparation for when a Democrat returns to the White House.
The major questions doctrine was developed by the conservative justices during the Biden administration to state that Congress cannot delegate policy decisions to the executive branch on major questions of economic or political significance without explicit language authorizing those specific policies. The court first used the term “major questions doctrine” when it preemptively struck down the Biden administration’s proposed emissions rules for power plants in the 2022 case of West Virginia v. EPA. It followed suit the next year in Biden v. Nebraska to apply the doctrine as it struck down Biden’s student loan forgiveness plan.
The way the court used this doctrine during Joe Biden’s presidency faced withering criticism for being incredibly vague — how do they determine what is a major question? — and seemingly used only to neuter Democratic policies. Justice Elena Kagan called it a “get-out-of-text-free card” in the West Virginia case.
“Some years ago, I remarked that ‘[w]e’re all textualists now,’” Kagan wrote. “It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
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Both Roberts and Gorsuch on Wednesday appeared to disagree with the administration’s claim that the major questions doctrine did not apply to Trump’s use of IEEPA to impose tariffs.
“The justification is being used to impose tariffs on any product, on any country, for any amount, for any amount of time,” Roberts said. “It does seem like … that is major authority and the basis for the claim seems to be a misfit.”
Similarly, Gorsuch had serious problems with the administration’s arguments that the president’s inherent authority over foreign affairs would override the major questions doctrine and seize power from Congress.
“What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce — for that matter, to declare war — to the president?”
Furthermore, a Democratic president could declare a climate emergency to impose tariffs on gas-powered cars, Gorsuch said.
By using the major questions doctrine to strike down Trump’s favorite tariff tool, the conservatives could be seeking to show that the major questions doctrine isn’t just a one-way legal mechanism. Considering the court has become increasingly unpopular and lost considerable legitimacy since its hard-right turn following Barrett’s appointment in 2020, that doesn’t seem far-fetched.
What this says about other Trump policies still to be decided remains to be seen. The court may fear its own loss of legitimacy and a presidential hand in the economy, but that doesn’t mean it will restrain Trump’s efforts to invade U.S. cities, deport immigrants, run over the First Amendment or gut federal agencies.