Donald Trump has upended the global economy, imposing steep tariffs on US allies and rivals, dismissing fears of higher prices, and promising his strategy will yield a new “golden age”. All the president needs to do now is prove he’s allowed to do it.
Legal experts say he may face an uphill battle.
In May, the US court of international trade ruled that the bulk of Trump’s tariffs “exceed any authority granted to the president”. And last Friday, the US court of appeals for the federal circuit ruled that Trump’s levies “assert an expansive authority that is beyond the express limitations” of the law his administration has leaned on.
Now Trump is taking the case to the supreme court, claiming any decision against him would “destroy” the US.
The appeals court has paused its ruling, allowing the tariffs to remain in place until 14 October. The administration wants the supreme court to move swiftly; solicitor general D John Sauer has requested the justices decide by Wednesday, 10 September, whether to pick up the case. Oral argument could take place in the first week of November, he suggested.
In a filing this week, Sauer claimed the appeals court’s “erroneous” decision had “disrupted highly impactful sensitive ongoing diplomatic trade negotiations and cast pall of legal uncertainty over the President’s efforts to protect our country by preventing an unprecedented economic and foreign policy crisis”.
It sets the stage for the biggest legal test yet of Trump’s controversial and fundamental rewrite of US trade strategy, hiking tariffs on foreign goods to their highest levels in the best part of a century.
Mark Graber, a leading scholar on constitutional law and politics at the University of Maryland, expects the administration to ultimately lose the case. “This is an issue that really splits the Trump coalition,” he said. “If it splits the Trump coalition, it probably splits the Trump coalition on the bench.”
The US supreme court is dominated by conservative justices, with six of the nine nominated by Republican presidents, including three by Trump. This supermajority has granted Trump 18 straight victories in the administration’s requests for emergency relief – and been accused by Sonia Sotomayor, a liberal-leaning justice, of undermining the bedrock principle that America is a “government of laws, not of men”.
“It won’t surprise me if a number of Republicans on the supreme bench actually jump on this one,” continued Graber, who believes four of the court’s conservative voices could be persuaded to vote against the tariffs, perhaps in part to counter the narrative that the court has been hijacked by the right. “I don’t think the [John] Roberts, [Amy Coney] Barrett, [Brett] Kavanaugh people are really very thrilled about tariffs. Probably not [Neil] Gorsuch, either.”
“I think this court would love to have a case where it doesn’t side with the administration,” he said. “This strikes me as a perfect case” to counter the perception that the supreme court is stacked with “stooges for Trump”.
At the heart of the case lies the 1977 International Emergency Economic Powers Act, or IEEPA, a US federal law invoked by Trump. The administration has cited the shipping of fentanyl into the US, and its trade deficits – how much more it imports than exports – as emergencies.
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The word “tariff” does not even appear in the law, however, raising questions over whether it grants the president sufficient power.
IEEPA “bestows significant authority on the president to undertake a number of actions in response to a declared national emergency”, the appeals court majority wrote, “but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax”.
While Congress has long delegated authority to impose or change tariffs, it has typically been explicit when doing so. But IEEPA states that presidents can “regulate importation”, and Trump’s allies argue this grants broad powers that could – and can – include tariffs.
The supreme court might be swayed by such an argument, Jonathan Adler, a professor at William & Mary Law School, wrote in the Wall Street Journal: “The whole point of enacting statutes like IEEPA is to give the president broad authority to address emergencies when they arise.”
Presidential powers tend to be at their strongest on foreign policy and national security, Adler noted, adding: “While IEEPA provides that such actions may ‘only be exercised’ to address such declared emergencies ‘and may not be exercised for any other purpose’, courts have rarely felt competent to second-guess the executive branch’s national-security determinations.”
Should the supreme court ultimately side with Trump, it will embolden the administration to press ahead with his aggressive economic strategy. But should it decide his tariffs are unlawful, the president has claimed the “financial fabric of our country” is on the line.
Despite such stark warnings, some have questioned whether Trump’s rhetoric on tariffs really reflects how he feels. “We normally think people litigate to win. But in fact, quite frequently people litigate to lose,” said Graber, at the University of Maryland. “The point was publicity.”
Trump “will not mind a loss” in this case, claimed Graber. “One of the virtues Trump gets by litigating this loser of a case is he can tell everybody: ‘I fought for tariffs, I fought for you, it’s just those elitist judges who stopped me,’” he said. “He gets credit for the tariffs, and he doesn’t get the fallout that tariffs would actually create, because they’re declared illegal.”
Either way, the wheels of justice turn slowly. A decision by the supreme court could take months. All the while, Trump’s tariffs remain in force.
The administration argues higher duties are strengthening the world’s largest economy, persuading nations to scramble to strike trade deals with the US. But there are early signs of strain, and the deals that have materialized are not substantial.
Related: The umpire who picked a side: John Roberts and the death of rule of law in America
In a report released this week, Michael Negron, of the Center for American Progress, a leading liberal thinktank, argued Trump’s “irrational, unpredictable” approach to policymaking and government had imposed a “turbulence tax” on US consumers and businesses.
“It’s just something that everybody’s paying,” Negron, an economic adviser in the Biden White House, said. “At the root of it is this unstable, unpredictable way in which he does his business.”
He added: “If he had said at the beginning of this process, ‘I am setting a 15% tariff … you can take that to the bank’, and he wasn’t changing the policy every couple of weeks, and he wasn’t issuing new threats, and he wasn’t announcing deals that when you look into them aren’t actually significant – just one, flat number – I think that would have been received much better, and would have proven less costly, than the ups and downs, and the ups and downs, and the ups and downs.”
If you’re a small-business owner counting the cost of more expensive imports, or a consumer wandering the aisles of your grocery store and wondering why the bill for your weekly shop is still growing, it’s hard to know what’s coming next.
But one thing’s for sure: no matter how this case is ultimately settled, the turbulence is unlikely to subside.
