For almost three hours at the Supreme Court on Wednesday, Solicitor General John Sauer struggled to justify President Donald Trump’s sweeping use of the tariff power. He faced tough questions not just from the court’s liberals, but from conservative justices such as Neil Gorsuch and Amy Coney Barrett. Sauer’s struggles, however, do not mean the conservative justices on the Supreme Court will rule against the president — even though the Constitution, the plain text of the relevant statute, and this Court’s past rulings strongly argue against the administration.
In a marathon oral argument, Sauer — a former personal attorney for Trump — squared off against veteran Supreme Court litigator Neal Katyal and Oregon Solicitor General Benjamin Gutman in a series of cases challenging the president’s deployment of sweeping tariffs on goods coming into the U.S. While the justices across the ideological spectrum asked both lawyers challenging questions, Sauer seemed to have the tougher day, as he was peppered from the right and left (literally and figuratively) with questions that might lead the average observer of the Court to conclude that the president is unlikely to prevail.
Despite delegating many tactics a president could deploy with respect to foreign commerce, Congress never explicitly included tariffs in that grant.
Justice Elena Kagan asked Sauer to find the word “tariff” in the International Emergency Economic Powers Act, the statute upon which the administration relied. Hint: It’s not in there (while it is present in dozens of other statutes). The IEEPA provides for a wide range of powers, including the right to “regulate” foreign commerce. But despite delegating many tactics a president could deploy with respect to foreign commerce, Congress never explicitly included tariffs in that grant.
Justice Sonia Sotomayor also challenged Sauer on his assertion that the tariff power is “foreign facing” and therefore resides in the president’s inherent power to regulate foreign affairs. But as Justice Neil Gorsuch noted, there are a lot of other “foreign-facing” powers, such as the power to declare war, that are clearly powers the Constitution assigns to Congress in Article I.
Similarly, the Constitution also grants the so-called foreign-facing authority to impose tariffs to Congress. Just because there are elements of a governmental power that touches upon foreign affairs does not mean that it is automatically something the president has the inherent power to exercise in an unconstrained way, especially when that power is explicitly reserved to Congress by the Constitution.
Which brings us to another bit of questioning that Sauer faced: How does one square the exercise of the tariff power in these cases with the framework first introduced by Justice Robert Jackson in the landmark case on presidential powers: Youngstown Sheet & Tube Company v. Sawyer?
In that case, President Harry Truman sought to nationalize American steel mills during the Korean War due to a union strike at those facilities that Truman feared could undermine the war effort. The Court found the president did not have the authority to seize the mills, even during a time of war. In his concurrence, Jackson explained that when the president acts in a manner authorized by Congress and has any additional powers by virtue of related executive-branch authority, the executive’s power is at its height. But Jackson also said that when the president “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
The biggest problem for Sauer was posed by Chief Justice John Roberts.
The concurrence has been a touchstone in cases involving presidential power since, with Wednesday’s oral argument the latest example of its influence. When questioned by Justice Clarence Thomas, Sauer argued that the uses of the tariff power at issue in these cases were an exercise of that first category of authority. But any fair reading of the statute and the tariff power as laid out in the Constitution strongly suggests that this exercise is more likely at the “lowest ebb” of presidential authority. As such, the president has greatly limited power.
But the biggest problem for Sauer was posed by Chief Justice John Roberts. He asked Sauer how a doctrine that the Court has crafted in recent years, the so-called “major questions doctrine,” might apply to this case. The doctrine requires that on issues of great significance, Congress must make a direct and clear grant of authority to the president before the executive branch can act. The Court cited this doctrine, for instance, in striking down President Joe Biden’s student loan forgiveness plan, because the Court’s conservative majority determined that when Congress said the president could “modify” student loans, that did not mean that he could “forgive” them. If you’re wondering how the same court that would not read the word “modify” to mean “forgive” could interpret the term “regulate” to mean “impose a tariff,” you’re not alone. Even if Sauer convinces a majority of the court that words such as “regulate” in the IEEPA could include tariffs, and that it is similarly ambiguous whether Congress authorized the president to take actions the Constitution assigns to Congress, that still leaves the major questions doctrine to overcome. It is precisely the apparent ambiguity surrounding those first two issues that, at a minimum, should trigger the major questions doctrine — with poor results for the president. Of course, none of this may matter. Yes, the Court just has to follow its recent precedent on any one of these issues in order to rule against the president. But given this Court’s record, whether it will act in a manner consistent with precedent remains to be seen. Anything short of it doing so would just confirm the fears of those who believe that this Court has different rules for presidents of different political parties.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
