Roundup of IEEPA Hearing Commentary
I listened to today's Supreme Court hearing on the IEEPA tariff cases, but it was clear to me that I am not well-positioned to offer good insights on how the Court might rule. (The transcript is here if anyone wants to give this kind of tea leaf reading a shot themselves). Instead, I thought what might be most useful is to gather the thoughts of people who know the justices and the substantive issues a bit better. What I have below is a start, and I will keep adding to this post if I come across more.
Kathleen Claussen, Georgetown Law - On a Lawfare podcast:
You really come away with the impression that the government is in trouble. And that there are at least five votes, potentially more, that lean towards saying that the tariffs are unlawful under IEEPA.
That said, I think there are some interesting theories out there as to how the government could still win the case, depending on how some of the ... conservative justices ... really want to cut this, that there's still a pathway according to which the government could still win.
Jack Goldsmith, Harvard Law - Interview with the NY Times:
I think that it is fair to say that the justices the government needs to win the case — Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett — asked the government very hard questions that did express skepticism about important elements of its case. But they also asked the other side very hard questions. I do not think any of these three tipped off their hands definitively. I did not find anything terribly surprising in the questions.
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[Kavanaugh's] line of questions — especially his basic agreement with the government’s reading of a case called Algonquin — suggested to me that he is leaning toward ruling for the government.
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In the piece you alluded to above I said I thought the government had the better of the technical legal argument, but that I could not predict the outcome with any confidence because “consequences of this case are too big in too many directions — a win or a loss for Trump has massive economic and political consequences, not to mention important legal implications for future presidencies.”
I am in the same basic place after oral argument, alas. But if I had to predict nonetheless, I think a majority of the court will be very worried, as mentioned above, about giving a president basically unconstrained tariff authority to raise revenue that Congress as a practical matter cannot reverse. It will be hard, I think, for five justices to bless that conclusion. And I think the secretary of the Treasury has made it easier for the court to avoid doing so by claiming in recent weeks that the administration can continue imposing tariffs based on other narrower and somewhat “more cumbersome” authorities that can nonetheless be “effective.” That concession effectively lowered the stakes of the court’s ruling against the president.
Peter Harrell, Visiting Scholar, Georgetown IIEL - On a Lawfare podcast:
With the big caveat that we are all reading tea leaves from the questions justices ask, and that doesn't necessarily indicate where a justice will ultimately come down, what struck me was that even a couple of the conservative justices seemed skeptical that IEEPA, this 1977 emergency power statute, authorizes tariffs on the scale that Trump has, in fact, imposed. Now that's not to say that all of the conservatives agree IEEPA authorizes no tariffs. You could see Alito, you could see Coney Barrett to some degree, sort of grappling with, well, might there be some circumstances in which IEEPA authorizes tariffs in a real emergency, or where there'd be some discrete goal that the President is trying to achieve. But I do think you also heard, again, even from some of the conservative justices, a fair amount of skepticism about the breadth of the government's assertion of the extent to which the statute authorizes the kind of sweeping tariffs that Trump has in fact imposed.
So I would say, if you're John Sauer, the Solicitor General, arguing this case for the government, ... I think you're walking out of that room going over to Jamieson Greer, the US Trade Rep, and saying, you know, maybe it's time to have a couple of the attorneys work on our fallback plan in case we don't prevail in this case, or at least in case we don't prevail on all of the things that we would like to see upheld in this case.
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I agree with Marty [Lederman] that I can see a scenario in which the court tries to draw a line here where IEEPA doesn't authorize the reciprocal and universal tariffs, but maybe does authorize geopolitical tariffs.
Peter Harrell - On LinkedIn:
1. After that argument, if I were the Trump Administration, I'd be burning the midnight oil over the next couple of weeks drawing up tariff backup plans. A clear majority of the Justices appeared skeptical that IEEPA authorizes the type of broad-based tariffs that Trump has asserted this year.
2. Several of the Justices, including Alito, appeared open to the proposition that IEEPA might authorize some TBD narrower tariffs in an event of a "real" emergency. E.g., if we had a real emergency with China, and IEEPA would authorize an embargo, shouldn't IEEPA authorize the lesser measure of a tariff? But even Justices seemingly inclined towards that view did not appear to buy that IEEPA authorizes the type of effectively unbounded tariffing authority Trump has asserted.
3. To me the biggest question coming out of the hearing is whether a clear majority of the Justices will rule IEEPA authorizes NO tariffs (which is my view of how the law should be read), or whether SCOTUS will hold that IEEPA doesn't authorize the universal/reciprocal tariffs or the "fentanyl" tariffs on Canada and Mexico, but that IEEPA might authorize some TBD future, narrower tariffs.
Marty Lederman, Georgetown Law - On a Lawfare podcast:
I want to draw the distinction here between the universal tariffs that are being applied here, the so called reciprocal tariffs on the one hand, and the fentanyl based ones on the other. ... I wouldn't be surprised if some of the justices are looking for a way this might fall on the line between the reciprocal tariffs and the fentanyl tariffs, or at least a holding that allows for some tariffs in certain circumstances. But then the holding can't be that the word "regulate" simply doesn't include the power to impose tariffs. It would have to be something different from that, or a variation on that. ...
I do think there's at least, there's clearly at least four votes for saying IEEPA does not authorize the broad reciprocal tariffs here that the President has imposed. And there's at least three or four other justices who are very much in play on that question, if not all nine. So I think the odds are that they will find some way to at least declare unauthorized by IEEPA the reciprocal tariffs. The fentanyl based tariffs I think are a closer call, possibly, but they would need a theory that draws a distinction between the two.
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I will say, though, that ... the justices were very skeptical of what I'll call the top line argument, which is that just looking at the text, the absence of the word tax, impose a duty, impose tariffs, in conjunction with all these other verbs and nouns, as Justice Barrett pointed out, ... is in and of itself determinative.
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The more straightforward way to decide the opinion, and what's actually going to drive them, regardless of what the opinion says, is, what did Congress intend here when you look at ... everything that they've done in this area, including the 1974 Trade Act and other statutes. And the answer to that is, maybe they did intend to give the president some tariff authority for true, unforeseeable exigencies that are much more discrete. But when it comes to the reciprocal tariffs, ... Congress figured out what they want to do with that, and it's in the statute. And President Trump's just trying to circumvent the decisions Congress has already made.
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It strikes me that the three Democratic appointees and Justice Gorsuch seem very strongly inclined to at least want to say that IEEPA does not authorize the universal tariffs. I think all of the justices ... are wary about a holding that will affect not so much the fentanyl tariffs themselves, but the hypos that they were raising about true exigencies.
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I can imagine them just being a little bit wary of a holding that says IEEPA doesn't authorize the imposition of any tariffs whatsoever.
Leah Litman, University of Michigan Law - On Bluesky:
argument over; i still think the most likely outcome is scotus invalidates the tariffs - at minimum the reciprocal ones.
Steve Vladeck, Georgetown Law - This was something he said on a CNN live blog but I don't have a link:
I went in thinking it was 50/50. I'm closer to 80/20 (against the tariffs) after that argument. But we have examples of arguments not being predictive, so...