Supreme Court’s conservatives face a test of their own in judging Trump’s tariffs

Los Angeles Times ^ | Nov. 4, 2025 3 AM PT | David G. Savage

[E. Pluribus Unum]

• Small-business owners sued over Trump’s tariffs, saying they had severely disrupted their businesses.

• The outcome is likely to turn on three doctrines that have been championed by the Supreme Court’s conservatives.

WASHINGTON  — The Supreme Court’s conservatives face a test of their own making this week as they decide whether President Trump had the legal authority to impose tariffs on imports from nations across the globe.

At issue are import taxes that are paid by American businesses and consumers.

Small-business owners had sued, including a maker of “learning toys” in Illinois and a New York importer of wines and spirits. They said Trump’s ever-changing tariffs had severely disrupted their businesses, and they won rulings declaring the president had exceeded his authority.

On Wednesday, the justices will hear their first major challenge to Trump’s claims of unilateral executive power. And the outcome is likely to turn on three doctrines that have been championed by the court’s conservatives.

First, they say the Constitution should be interpreted based on its original meaning. Its opening words say: “All legislative powers ... shall be vested” in Congress, and the elected representatives “shall have the power to lay and collect taxes, duties, imposes and excises.”

Second, they believe the laws passed by Congress should be interpreted based on their words. They call this “textualism,” which rejects a more liberal and open-ended approach that included the general purpose of the law.

Trump and his lawyers say his sweeping “Liberation Day” tariffs were authorized by the International Economic Emergency Powers Act, or IEEPA.

That 1977 law says the president may declare a national emergency to “deal with any unusual and extraordinary threat” involving national security, foreign policy or the economy of the United States. Faced with such an emergency, he...

[Fury]

I believe the Court will rule that the President exceeded his authority using the IEEPA in this manner.

[bert]

So, the SCOTUS must decide if the IEEPA is in fact constitutional.

Then if the SCOTUS determines the terms of the IEEPA to be constitutional, it must determine that the President’s declaration delt with an unusual and extraordinary threat.

We’ll see. It’s beyond my capacity

[Ex-Con777]

> The authority of Congress to lay and impose taxes, duties, etc. is clear as day.<

Are you saying this cannot be infringed?

I think the argument over emergency powers (a duty ceded to the president by statute) will be strong. A debt of $39T, massive trade deficit, and looming hyperinflation are an economic emergency if there ever was one.

EC

[gibsonguy]

Maybe, both of our posts can be true. 9-0 would surprise me.

[Alberta's Child]

Something that unfolds over the course of five decades or more can’t possibly be described as an “emergency” by any objective measure.

[Ex-Con777]

So stage four cancer isn’t an emergency because it started some time ago as stage one? At some point an annoyance can become an emergency.

EC

[woodpusher]

I’m afraid you are missing the point. The trade imbalance itself is not the emergency.

The thread article states: "Trump said the nation’s 'persistent' balance of payments deficit over five decades was such an 'unusual and extraordinary threat.'"

That is what was stated as the point.

[woodpusher]

Your globalist free traitor dna is showing.

Your communist dictatorial dna is showing. Advocating serial rape of the Constitution is no way to go through life. The People, globalist free traitors all, saw fit by the Constitution to delegate certain powers to Congress: Article 1, Section 8 - "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States ... To regulate commerce with foreign nations."

The Executive has no constitutional power to lay taxes, duties, imposts or excises. What statutory power the Executive has is delegated to it by the Legislature. Take it up with the globalist free traitor Framers who wrote that crap.

[Capn Hayek]

Amen.

[woodpusher]

I believe the Court will rule that the President exceeded his authority using the IEEPA in this manner.

I believe that is what should happen based on the the law; however Scotus sometimes gets creative. I'm thinking of Obamacare where a penalty under the Commerce Clause was found unconstitutional; but an alternate reading resulted in a tax under the Taxing power, and that was constitutional. I thought they would just rule it unconstitutional, in blatant violation of the Commerce Clause.

I listened to the oral arguments today and Gorsuch-Sauer was interesting on constitutional issues. Generally, the justices seemed skeptical of the government argument.

Audio of the complete oral argument [2 hr 39 min] is available here:

https://www.supremecourt.gov/oral_arguments/audio/2025/24-1287

Transcript ewxcerpt of Gorsuch-Sauer is below: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/24-1287_097c.pdf

IN THE SUPREME COURT OF THE UNITED STATES

Pages: 1 through 189

Place: Washington, D.C.

Date: November 5, 2025

[63]

CHIEF JUSTICE ROBERTS: Justice Gorsuch?

JUSTICE GORSUCH: General, just a few questions following up on the major questions discussions you've had.

You say that we shouldn't be so concerned in the area of foreign affairs because of the President's inherent powers. That's the gist of it, as I understand it, why we should disregard both major questions and nondelegation.

So could Congress delegate to the President the power to regulate commerce with

[64]

foreign nations as he sees fit -

GENERAL SAUER: We don't -

JUSTICE GORSUCH: --to lay and collect duties as he sees fit?

GENERAL SAUER: We --we don't --we don't assert that here. That would be a much harder case. Now, in 1790 -

JUSTICE GORSUCH: Isn't that the logic of your --of your view, though?

GENERAL SAUER: I don't think so, because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about.

JUSTICE GORSUCH: But you're saying we shouldn't look -

GENERAL SAUER: He has broad powers in this very narrow assignment.

JUSTICE GORSUCH: --we shouldn't be concerned with --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 off the books more or less.

GENERAL SAUER: Or at least -

JUSTICE GORSUCH: And if that's true,

[65]

what would --what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?

GENERAL SAUER: We don't contend that he could do that. If it did -

JUSTICE GORSUCH: Why not?

GENERAL SAUER: Well, because we're dealing with a statute, again, that has a whole list of limitations.

JUSTICE 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 and why the major questions and nondelegation, what bite it would have in that case.

GENERAL SAUER: Yes. I would say by then you would move from the area where there's enormous deference to the President in actually both the political branches, where, here, there's inherent authority, and pile on top of that there's a broad delegation of the duty and -

JUSTICE GORSUCH: You're saying there's inherent authority in foreign affairs,

[66]

all foreign affairs, so regulate commerce, duties and --and --and --and tariffs and war. It's inherent authority all the way down, you say. Fine. Congress decides tomorrow, well, we're tired of this legislating business. We're just going to hand it all off to the President.

What would stop Congress from doing that?

GENERAL SAUER: That would be different than a situation where there are metes and bounds, so to speak. It would be a wholesale abdication.

JUSTICE GORSUCH: You say we --we -we are not here to judge metes and bounds when the foreign affairs. That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principle test or something more --with more bite than that, you're saying it's something less. Well, what is that less?

GENERAL SAUER: I think what the Court has said in its opinions is just that it applies with much less force, more limited application in this context.

[67]

So perhaps the right way to approach it is a very, very deferential application of the intelligible --intelligible principle test, that --that sort of wholesale abdication of -

JUSTICE GORSUCH: All right. So now you're admitting that there is some nondelegation principle at play here and, therefore, major questions as well, is that right?

GENERAL SAUER: If so, very limited, you know, very, very deferential -

JUSTICE GORSUCH: Okay.

GENERAL SAUER: --and limited is what --and, again, the phrase that Justice Jackson used is it just does not apply, at least -

JUSTICE GORSUCH: I know, but that's where you started off, and now you've retreated from that as I understand it.

GENERAL SAUER: Well, I think we would as our frontline position assert a stronger position, but if the Court doesn't accept it, then, if there is a highly deferential version -

[68]

JUSTICE GORSUCH: Can you give me a reason to accept it, though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the President?

GENERAL SAUER: Well, we don't contend that. Again, that would be -

JUSTICE GORSUCH: Well, you do. You say it's unreviewable, that there's no manageable standard, nothing to be done. And now you're --I think you --tell me if I'm wrong. You've backed off that position.

GENERAL SAUER: Maybe that's fair to say.

JUSTICE GORSUCH: Okay. All right. Thank you.

(Laughter.)

GENERAL SAUER: Because that would be, I think, an abdication. That would really be an abdication, not a delegation.

JUSTICE GORSUCH: I'm delighted to hear that, you know. Okay. All right.

[Political Junkie Too]

A trade imbalance is neither unusual nor extraordinary. It may rise to levels that threaten the economy but that does not make it unusual or extraordinary. A persistent condition which has continued for over fifty years can hardly qualify as unusual. That's like saying the Dallas Cowboys missing out on the Super Bowl is unusual.

Suppose you were diagnosed with prostate cancer 10 years ago, and your doctor told you to simply adjust your diet and you will likely outlive the cancer. You choose to buy the minimal health insurance that you can, and you go on with your life.

Ten years pass and you have lived with the "persistent" disease of prostate cancer, using the money that didn't go into health insurance to buy a car, pay for a cruise, travel to Europe, etc. You could have taken more aggressive measures to treat it 10 years ago, but you relied on advice at the time to not be so panicky about it and to go on with your life. Clearly bad advice.

Ten years have passed and now your cancer has changed. It is now progressing more quickly and is becoming an existential threat to you. You go to your doctor who tells you that there isn't anything he can do because you don't have the coverage.

You decide to take matters into your own hands and go to Mexico to barter for the drugs that your doctor won't give you. On your way back into the United States, Customs detains you for "smuggling" controlled substances into the United States. You say that it's a cancer medication that you need for your persistent condition but you can't provide any prescriptions to prove your right to possess the drug.

You're immediately arrested.

At your arraignment you tell the judge that you have a persistent condition that has rapidly increased and is now an existential threat. You were in an unusual position of having to secure the drugs now via extraordinary means.

The judge says: "Your cancer is neither unusual nor extraordinary. It may rise to levels that threatens your health but that does not make it unusual or extraordinary.

"A persistent condition which has continued for over ten years can hardly qualify as unusual."

He then denies your motion to dismiss and holds you over for trial.

What do you do now?

-PJ

[JayGalt]

If you are trying to be “right” rather than understand that is your privilege. Do you think it would have been an issue if the effect of those imbalances was not so severe? Again the effects were the emergency, not the imbalances that eventually caused the effects.

[central_va]

Kavenaugh made the best point: since the POTUS can embargo under the emergency act then a tariff is allowed.

[central_va]

Read the trade act of 74.