'Can I just ask you a question?': Justice Barrett just put top Trump admin lawyer on skates, prompting barrage of SCOTUS doubts on unilateral tariffs

After President Donald Trump considered, but ultimately did not follow through on, attending Supreme Court oral arguments over his emergency tariffs, the justices, including one of his own conservative appointees, were not convinced about the 45th and 47th commander in chief's assertions about the extent of his executive power for unilateral economic intervention on national security and foreign policy grounds.

At issue is the International Emergency Economic Powers Act (IEEPA), a statute that — as appellate judges established — "doesn't mention the word tariffs" and has never been used for tariffs in the half-century of the law's existence.

The two cases before SCOTUS were brought by wine and spirits importer and distributor V.O.S. Selections, Inc. and Learning Resources, Inc. In early September, the high court granted the latter petitioners certiorari before judgment, leapfrogging the appellate court to consolidate the case with V.O.S. Selections, in the aftermath of the U.S. Court of Appeals for the Federal Circuit's 7-4 ruling in August that Trump's unilaterally imposed trade deficit emergency tariffs were unconstitutional.

D. John Sauer, U.S. solicitor general and a former attorney for Trump, opened his argument by defending the president's ability to respond to "exploding trade deficits" that "brought us to the brink of an economic and national security catastrophe," claiming that the major questions doctrine doesn't apply.

The Supreme Court has applied the major questions doctrine and "rejected agency claims of regulatory authority," a congressional research paper explains, when "(1) the underlying claim of authority concerns an issue of 'vast 'economic and political significance,' and (2) Congress has not clearly empowered the agency with authority over the issue."

Unsurprisingly, Justice Clarence Thomas' first question was why the major questions doctrine didn't apply, and the first part of Sauer's answer was: "common sense," that "one would expect" Congress to grant "major powers" to the president to be able to respond to emergencies, with a sweeping delegation of authority through IEEPA.

It would not be the last time the justices asked about the major questions doctrine.

After Justice Elena Kagan stated that the power to tax belongs to Congress, Sauer replied that Trump is not asserting a "power to tax," but a "power to regulate foreign commerce," which the solicitor general maintained is what is meant by the words "regulate importation" in IEEPA.

It was at this point that Justice Sonia Sotomayor said, "Counsel, I just don't understand this argument."

"It's a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that's exactly what they are," the justice said, wondering why under this theory of law that former President Joe Biden couldn't have simply declared "a global warming national emergency" and then rammed his student loan forgiveness program through without implicating the major questions doctrine.

A short time later, Justice Amy Coney Barrett asked Sauer questions that led to a barrage of even more skepticism, including a statement from Chief Justice John Roberts that it seemed the major questions doctrine might be "directly applicable" here.

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"Can I just ask you a question?" Barrett began. "Can you point to any other place in the code or any other time in history where that phrase together 'regulate importation' has been used to confer tariff imposing authority?"

"Well, as to relegate importation, that was held in TWEA," referring to the Trading with the Enemy Act of 1917, which the Trump administration has claimed used the "exact same language" Trump is now using — "regulate importation" language that stood up to judicial scrutiny in the 1975 President Richard Nixon-related case of United States v. Yoshida International, Inc.

In the Yoshida case, the Federal Circuit decided that Congress, "in enacting [TWEA], authorized the President, during an emergency, to exercise the delegated substantive power, i.e., to 'regulate importation,' by imposing an import duty surcharge or by other means appropriately and reasonably related … to the particular nature of the emergency declared."

But the Yoshida court also opined that a president cannot merely utter "national emergency" to "rewrite the tariff schedule," and IEEPA reforms of TWEA were enacted by Congress two years later.

"Okay, okay, and so an intermediate appellate court held it in TWEA, but you just told Justice Kavanaugh that wasn't your lead argument, that your lead argument was this long history of the phrase 'regulate importation' being understood to include tariff authority," Barrett interrupted Sauer, saying the cases he cited fell short of a power he claimed exists. "So my question is has there ever been another instance in which a statute has used that language to confer the power?"

"Can you identify any statute that used that phrase to confer tariffs?" Barrett asked again.

"The only two statutes I can identify now are TWEA as interpreted in Yoshida, and then closely related, not regulate importation, but 'adjust imports' in Section 232," Sauer said before Barrett cut him off.

"Well, I think 'adjust imports' is different[]," the justice said. "So the answer is the contested application in TWEA and now in IEEPA."

From here, Kagan jumped in to follow up with the very same skeptical question.

"I'll broaden out justice Barrett's question, is there any place that you can find in the entire code where 'regulate' used just as 'regulate' includes taxing power?" she asked.

"We don't assert that," Sauer answered, "we say it includes tariffing power when it's combined with importation."

"But when the code uses 'regulate,' we don't typically understand it to refer to duties or taxes or tariffs or anything of the kind. And then if you look at the flip side of this, and you look at all the tariff statutes that Congress has passed, I mean, they use language about revenue, raising tariffs and duties and taxes, all the language that does not appear in the statute," Kagan fired back.

Sotomayor, seeing an opening, followed suit, asking: "Why is it that Congress has always used 'regulate' and 'tax' together in the code? Are you telling us that with respect to its use of 'regulate' in other statutes, the taxing reference is superfluous? They didn't need to do that?"

"Uh," Sauer paused for a couple of seconds before answering, "I'm not sure what other statutes use 'regulate' and 'tax' together, but this statute has a specific historical pedigree, going back to its enactment during world war one in 1917 where the phrase 'regulate importation' is evoking an inherent power to tariff that would became established in the 19th century[.]"

Chief Justice Roberts, hearing all of this, then brought the conversation back to the major questions doctrine.

"Counsel, some time ago, you dismissed the applicability of the major questions doctrine. And I want you to explain that a little bit more. I mean, it seems that it might be directly applicable," Roberts said. "You have a claimed source in IEEPA that had never been used before to justify tariffs. No one has argued that it does until this particular case."

"That seems like — I'm not suggesting it's not there — but it does seem like that's major authority, and the basis for the claim seems to be a misfit. So why doesn't it apply again?" the chief asked.

Sauer replied that the point of IEEPA is to "address major questions" of an "emergency" nature, so it would be odd to say there is no major power for Trump to act as he has.

"Well, but the exercise of the power is to impose tariffs, right? And the statute doesn't use the word tariffs," Roberts pointed out.

"But it uses the word regulate importation," Sauer answered.

Once it was Justice Neil Gorsuch's turn, he also wondered what was stopping Congress from just throwing in the towel on this "legislative business" and "hand it all of to the president."

On the eve of oral argument, Trump repeated in a social media post that if that justices don't rule in his favor it's "literally, LIFE OR DEATH for our Country."

This struck the same tone as prior dark warnings of another Great Depression and literal destruction of America.

Based on the major implications of Trump's claimed power, the justices have an opportunity to affirm that the president does not — through an emergency statute that makes no mention of tariffs — have an "unlimited power to set tariffs on all goods imported from all our trading partners," preventing future commanders-in-chief from claiming a power reserved to Congress.

That was the overarching argument from Neal Katyal on behalf of V.O.S. Selections — that Trump cannot have a virtually unlimited and "unilateral" authority to set aside "all" of America's trade treaties in a sweeping and unreviewable way.

"May it please the court: Tariffs are taxes," he said.

"They're citing one statute," Katyal added, referring to IEEPA, "and we submit to you that it doesn't come close" to making the case for trumping Congress' tariff authority.

"With all due respect," the attorney continued, the petitioners don't think IEEPA allows Trump's "junking of the worldwide tariff architecture" or wholesale "rewriting of the tariff code."