Even if you weren’t directly affected by Trump’s waves of tariffs this year, you’ll know that they’re a pretty big deal. It was no surprise when they immediately sparked legal battles, with businesses and states challenging his sweeping use of emergency powers.
Now, the case has just been argued in front of the U.S. Supreme Court. But Trump’s trade showdown at the SCOTUS isn’t just about who picks up the tab — it could finally flip the script on a bench that’s usually all-in for the former president. Will the justices stick to the pattern or break from the mold?
Looking at the Larger Pattern
First, let’s take a look at some stats.
A new report from Court Accountability finds that President Donald Trump’s administration fares far better before the Supreme Court than in lower courts. Reviewing hundreds of cases involving Trump’s actions, the group found that challengers succeeded about 60 percent of the time in district courts and 59 percent in circuit courts. However, partisan patterns emerged in appellate rulings: Republican-appointed judges sided with Trump 84% of the time, while Democratic-appointed judges sided with challengers 85% of the time.
At the Supreme Court, Trump’s success rate soared to 90% across 23 rulings. Most of these come from the court’s “shadow docket,” which allows decisions without full hearings or detailed explanations. Court Accountability argued that district judges engaged in rigorous, bipartisan review, while higher courts, particularly the Roberts Court, issued ideologically driven rulings that favored Trump.
Not long after accusing former president Joe Biden of stealing the election, Trump singled out two liberal justices (Sotomayor and the late Justice Ruth Bader Ginsburg) for having a bias against him. And it might sound reasonable to think that judges appointed by Republican presidents would be more inclined to rule for the Trump Administration than their Democratic counterparts. But the reality is not so simple. Although Trump and his allies continue to publicly blame Democratic appointees for obstructing his agenda, many of the most damaging rulings have come from judges he personally nominated. Judges appointed by President Trump have repeatedly ruled against his administration’s key initiatives, a development that has frustrated him and undercut his claims that the judiciary is dominated by “radical liberals.”
While Trump’s Supreme Court appointees (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) have largely supported his administration through emergency rulings, many district-level Trump nominees have resisted expansive uses of executive power. In recent months, Trump-appointed judges have blocked several of his administration’s controversial actions. They halted his attempt to deploy the National Guard in Portland, rejected midnight deportations of Guatemalan children, ruled against mass deportations of Venezuelan nationals under the Alien Enemies Act, and struck down his unilateral tariff powers.
That last one is particularly relevant at the moment because it’s currently before the Supreme Court, and there’s a lot at stake.
Trump Flexes Tariff-ic Powers
The case centers on the legality of President Trump’s use of the International Emergency Economic Powers Act (IEEPA) of 1977. Early into his second term, Trump tried to invoke this law to impose sweeping tariffs on imports from over 100 countries — a move meant to address trade deficits and bolster American manufacturing.
Historically, IEEPA has been employed by presidents to impose sanctions or embargoes during emergencies, especially for national security or foreign policy reasons. Trump, however, is the first president to interpret the statute as including the unilateral power to set tariffs. His administration argues that IEEPA’s broad language permitting the president to “regulate imports” justifies the tariffs, framing them as emergency measures responding to ongoing trade imbalances and foreign economic threats. The solicitor general claims these tariffs are regulatory tools rather than congressional taxes, and that any revenue generated is incidental to their foreign policy purpose.
Challengers (including a group of states and small businesses) argued that tariffs are essentially taxes, and that the Constitution reserves the power to tax to Congress alone. They asserted that delegating so much discretion to the executive branch via IEEPA is unconstitutional, as it turns the president into the sole arbiter of major economic policy. They invoked the “major questions doctrine,” which requires clear congressional authorization when the executive branch undertakes actions with broad economic and political consequences. The challengers also raised concerns about the nondelegation doctrine, which holds that Congress cannot abdicate its core legislative powers, and about the practical burden the tariffs place on American businesses and consumers.
Trump Appointees Not Necessarily On His Side
During oral arguments on November 5, several justices voiced skepticism about the administration’s position. Chief Justice Roberts and other justices raised concerns that upholding the tariffs would dramatically expand executive authority. This, they said, could diminish Congress’s core powers over taxation and commerce.
The pushback did not just come from the usual suspects, but included Trump-appointed conservatives like Barrett and Gorsuch. They questioned whether Congress had truly intended to grant the president such unbounded power and whether every targeted country qualified as an “emergency” under the law. The justices probed the differences between shutting down trade (which is permitted under IEEPA) and imposing tariffs. They also questioned whether the statute’s absence of explicit references to “tariffs” or “taxes” supports the challengers’ view.
Trump-appointed Justice Kavanaugh also doubled down on the other justices’ concerns. He agreed that the Trump administration’s interpretation of the statute, “would allow the President to shut down all trade with every other country in the world or to impose some significant quota on imports from every other country in the world but would not allow a 1 percent tariff.” He went on to note that this leaves an “odd donut hole” in the statute. He observed: “Why would a rational Congress say: ‘Yeah, we're going to give the President the power to shut down trade’? I mean, think about the effects.”
Other Conservatives Also Push Back
While Trump’s three appointees expressed skepticism over the Trump administration’s arguments, what about other conservative justices? After all, many legal experts have opined that it is not Trump’s own nominees that have ruled the most in his favor, but rather Justices Alito and Thomas.
Justice Alito, considered by some to be Trump’s (unofficial) favorite Justice, gave the president’s lawyers plenty of pushback over oral arguments. His questions revealed skepticism of the administration’s use of IEEPA for tariffs and concern for constitutional limits. He pointed out that Supreme Court precedent has held that future surcharges "must, of course, comply with Section 122 of the Trade Act of 1974” and that “the Trading With the Enemy Act did not authorize the President to ‘fix rates of duty at will without regard to statutory rates prescribed by Congress.’”
Justice Alito raised the possibility during Supreme Court oral arguments that, if the President lost the current case about tariff authority under one statute, he could simply invoke a different statutory authority like Section 338 of the Tariff Act of 1930 to justify reimposing the same tariffs. Alito specifically asked whether it would be better for the Court to address this scenario now, rather than allowing a cycle where challengers would have to bring new lawsuits every time the President switched legal authority.
Justice Thomas’s primary interest was in how specific constitutional doctrines (especially the “major questions doctrine” and the nondelegation doctrine) should apply to presidential delegations in the realm of foreign affairs, particularly when Congress has handed the president broad statutory powers. His first question directly asked the administration’s lawyer to justify why the major questions doctrine should not constrain presidential action under the IEEPA, emphasizing whether traditional limitations on agency and executive power were appropriate in this foreign affairs context.
What’s Next?
As the arguments concluded, the court’s conservative majority appeared divided. A decision in Trump’s favor could bolster future presidential power in trade and emergency contexts, while a loss could force the administration to unwind tariffs and potentially refund billions to affected importers. The ultimate ruling is poised to shape the legal contours of emergency executive authority for years to come. Will the justice fall on party lines as they often do, or will this case be one to break the mold? We’ll have to wait until they decide to hand down a final ruling. But folks, that could be a while.
Related Resources
- Court Strikes Down Trump’s Citizenship Voting Order as Unconstitutional (FindLaw's Federal Courts)
- U.S. Supreme Court Denies Emergency Order on Vaccine Opt-Out in School (FindLaw's Federal Courts)
- The Legal Showdown Over the National Guard in Oregon (FindLaw's Federal Courts)
