At the Supreme Court, Solicitor General John Sauer struggled to justify President Donald Trump’s sweeping use of the tariff power.
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.
