Waiting for the Supremes Part II

Commentary by William Alan Reinsch

Published November 10, 2025

My September 8 column commented on the decisions of the Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit (CAFC) that Trump had exceeded his authority in using the International Economic Emergency Powers Act (IEEPA) to impose tariffs on Canada, Mexico, and China and subsequently on most of the world. There has been a boatload of analysis of those decisions and the underlying constitutional issues over the past several months. If you want my short take on them, go back to the September 8 column.

Now, the issue is back on the front page due to the Supreme Court's hearing oral arguments on November 5, which I expect will lead to a decision before the end of the year, and the comments in the hearing provide some hints as to which way justices are leaning.

Today, I'll get into that, but first I want to remind readers that while the decision will be enormously important in determining the extent of presidential authority, in the immediate case, the outcome will not make much difference. If Trump wins, the tariffs stay in place. If he loses, he will reimpose at least some of them using different statutes. For a description of his options, see this Economics Program and Scholl Chair in International Business commentary from October 2024. He will be sued again, of course, and will likely lose again, but the courts have already been clear that they will allow the tariffs to remain in place while the litigation proceeds, so I foresee a Groundhog Day scenario of continuing tariffs and lawsuits without much relief for producers or consumers.

The oral arguments, as usual, provided some hints about the justices' thinking but no clear trends. The justices seem to enjoy torturing the attorneys for both sides with complicated questions and extreme scenarios, but some themes did emerge. The two big issues are how much of its authority Congress can delegate to the executive and whether the authority delegated in this case constitutes a "major question." If it does, then previous court decisions suggest that the delegation needs to be accompanied by congressional guidance and guardrails to keep it within responsible limits. That is actually two issues-whether the major questions doctrine applies in this case (the administration argues it does not)-and, if so, whether Congress has provided the necessary guidance (the plaintiffs argue it has not).

Interpreting justices' comments in oral arguments is a bit like reading tea leaves, but it did seem that most of them bought into the idea that the tariffs are indeed a major question; however, there was less agreement over the nondelegation question, which is directly related to the issue of congressional guidance. Some of the interesting "what ifs" focused on whether there were limits to what Congress could delegate, and, if so, what they were. One question was whether Congress could cede its taxing authority or its war-declaring authority to the executive. In other words, could it effectively put itself out of business? The implication from some justices was that unbounded grants of authority were a danger to U.S. democracy, and that using IEEPA to impose tariffs was an example. And that is the larger question the court will have to grapple with-does IEEPA place any limits on the president's authority, and, if so, what are they? That could take the court in the direction of trying to draw that line, which might result in it ruling some of the tariffs permissible and some not. In that case, they will probably lay out some parameters for what is permissible and return the matter to lower courts to work out the messy details.

Two other topics took up some time. First was whether the IEEPA language "regulate . . . importation" includes tariffs. Plaintiffs contend it does not. The second concerned the revenue the tariffs are raising. Several justices pointed out that if they are raising revenue, then they are a tax, which only Congress has the authority to impose. The administration's argument, which likely produced some eye-rolling in light of Trump's frequent bragging about all the money they are bringing in, was that the revenue was incidental and not the primary purpose of the tariffs. It is hard to see the court buying that one.

Separately, Justice Amy Coney Barrett raised the issue of refunds and asked whether it would be a "complete mess." It's an important question, although the court's decisions should not be based on whether they inconvenience the government. In fact, the United States has long had in law and regulation a well-established process for obtaining refunds of customs duties. I wouldn't call it quick and simple, but customs brokers and freight forwarders are experienced in dealing with it. Of course, the administration could make it much more difficult if it wanted to try to keep the money, but there is no inherent complexity in the process.

These are just a few of the highlights. The prevailing view of observers was that justices across the spectrum indicated varying degrees of skepticism about the administration's arguments. I agree with that, but don't think it necessarily means a defeat for the president. Some of the conservative justices, who formed the majority ruling against former President Biden's exercise of authority, will no doubt tie themselves in knots trying to explain why it was wrong for Biden to do it, but all right for Trump to do essentially the same thing. The liberal justices will reliably oppose the president. That leaves Justices John Roberts, Amy Coney Barrett, and possibly Neil Gorsuch to decide the case. My guess-and it is a guess-is that at least two, if not all three, will come out against the president's position, producing a 5-4 or 6-3 decision in favor of the plaintiffs to some degree. That could mean $90 billion and counting of refunds for past tariff collections, but, as explained above, it won't be the end of the story as the administration moves to use other laws to continue them. As usual, the big winners here are the lawyers.

William A. Reinsch is senior adviser and Scholl Chair emeritus with the Economics Program and Scholl Chair at the Center for Strategic and International Studies in Washington, D.C.

Programs & Projects