TRUMP HINTS OF ATTENDANCE AT SCOTUS ARGUMENTS ON TARIFFS

Ralph Bristol

by Ralph Bristol, Facebook, Nov. 2 ,2025- On Wednesday this week, the Supreme Court hears arguments on whether President Trump has overstepped federal law with many of his tariffs. He and I consider it one of the most important cases the court has heard in years.

Earlier this year, two lower courts and a 7-4 majority on the U.S. Court of Appeals for the Federal Circuit found that Trump did not have power under the International Emergency Economic Powers Act, or IEEPA, to set tariffs — a power the Constitution grants to Congress. 

Dissenting judges said the law allows the president to regulate imports during emergencies “without specific limitations.”  Everyone agrees that’s a loophole, but the loophole is vague and untested. “How big and how vague” is the question before the court.

The Supreme Court is wading into uncharted waters, and thus has wide latitude in deciding whether (a) the national emergency cited by Trump is of the sort Congress had in mind when it passed the law in 1977 (b) whether he is using it as a response to that emergency – or for something else entirely and (c) whether imposing taxes falls under the definition of “regulating imports.” 

One might have expected Congress to have answered those questions in advance, but one would not know Congress to have those expectations. Congress has been consistent over my lifetime in turning over more decisions about the specific use of legislation to an executive branch and 20 different federal departments and agencies who are drafting millions of pages of rules, interpretations and new executive powers that a Congress, accurately representing the U.S. population, never imagined for the president and has neither the intellectual capacity nor the courage to challenge.

The Supreme Court has given President Trump some latitude in its many rulings regarding his actions, but not all. Reuters reports Trump's administration has made 19 emergency applications to the court in less than five months. The court has acted in 13 of these cases, ruling in Trump's favor nine times, partially in his favor once, against him twice and postponed action in one case that ultimately was declared moot.

HOW IMPORTANT IS THIS?

The AP reports, “Trump increasingly has expressed agitation and anxiety about the looming decision in a case he says is one of the most important in U.S. history. Trump has suggested he may attend the arguments in person.” Trump is correct that this case is one of the most important in U.S. history.  It could alter the balance of power between the executive and legislative branch more than any other I can recall. 

THE CASE (Learning Resources, Inc. v. Trump, consolidated with V.O.S. Selections, Inc. v. Trump.)

• On April 2, 2025, President Trump declared a national emergency and announced that he would be impose tariffs on most imports to the United States and additional duties on certain trading partners. He argued that the International Emergency Economic Powers Act of 1977 (IEEPA) may be used "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States," if the President declares a national emergency under the National Emergencies Act (NEA) with respect to that threat. 

• Plaintiffs argue the IEEPA was never intended to authorize tariffs. It lets presidents block or regulate specific economic transactions with hostile nations during emergencies — not impose broad, peacetime import taxes. IEEPA authorizes the President to "regulate" a variety of international economic transactions, including imports. 

• Whether "regulate" includes the power to impose a tariff, and the scale and scope of what tariffs might be authorized under the statute, are open questions as no President has previously used IEEPA to impose tariffs.  

Since tariffs are a tax, and Congress has the sole power to impose taxes, the court would have to decide that Trump’s arguments are compelling enough to trump one of the most important powers the Constitution reserves for Congress.  It may or may not inform the court that three Senate votes were held recently, challenging Trump’s use of tariffs/emergency declarations, and Republicans crossed party lines to join Democrats in each: 4 Republicans in two of the votes, 5 Republicans in one of them.

If I were handicapping the Supreme Court decision, I would give 5/4 odds in favor of a ruling against the president.  Although the Roberts court is more protective of its own power than that of Congress, I predict both Roberts and at least one Trump appointee will vote against the administration’s arguments.  And, I think they should.  I also believe Trump will respect the court’s decision and pivot to a new plan, one that involves a new justification for most of the tariffs. All presidents test the limits of their powers. They don’t expect to win all the time, and I don’t think Trump expects to win this time. I admit that’s pure speculation, but it’s informed speculation. 

WHAT WOULD THAT MEAN?

Business Insider reports, “Whatever the Supreme Court decides, it would apply only to the "reciprocal" tariffs announced on "liberation day" and the "trafficking" tariffs Trump issued earlier on imports from China, Canada, and Mexico, which he said were meant to stem what the White House described as a tide of foreign-made fentanyl into the United States.”

If the Supreme Court knocks down the IEEPA tariffs, Trump could still accomplish his trade policies, but it would be "a lot messier and more difficult," said Alan Wolf, a former deputy director of the World Trade Organization, who has negotiated trade deals in both Republican and Democratic administrations, now a fellow at the Peterson Institute for International Economics.

There are laws that explicitly grant the president the ability to issue tariffs without Congress's permission, but those laws are much less flexible than the powers Trump claimed under IEEPA. Those tariffs can only be imposed against specific countries or particular industries and they typically have built-in expiration dates and caps on how high the tariff can be.  "For IEEPA, we need none of that," said Rachel Brewster, a professor of international trade at Duke Law School. "We don't need any investigation. We don't need any substantive limits. You just have this completely unbound power in IEEPA, which is why the president is now so fond of IEEPA."

It’s also why Trump may attend Wednesday’s open arguments in person.  The court will let us all know, by way of its questions, how it’s likely to rule.  I’ll be watching. 

Ralph Bristol is the former long-time morning talk radio host broadcasting on Supertalk 99.7 WTN. He was one of the less provocative and bombastic of conservative radio personalities, more thoughtful and grounded in conservative ideas. He left talk radio in 2018 and retired. He lives in Nashville. 

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