On tariffs, the Supreme Court’s GOP justices appear ready to save Trump from himself

After Wednesday’s oral arguments at the Supreme Court, it appears that a majority of the justices will vote to halt Trump’s imposition of sweeping tariffs under a 1977 emergency powers act. But a loss for Trump will, in fact, be doing him a favor. And the GOP-appointed justices—who have spent the past 10 months giving Trump virtually everything he wants—surely know this. 

Beginning in February, Trump imposed sweeping and ever-changing tariffs on nearly every nation in the world. The Constitution explicitly gives Congress the power to levy tariffs and taxes. But Trump claims an unlimited tariff power under the International Emergency Economic Powers Act (IEEPA), a 1977 law that authorizes the president to respond to “any unusual and extraordinary threat” from abroad. This includes the power to “regulate… importation or exportation of…property in which any foreign country or a national thereof has any interest.” The word “regulate,” Solicitor General John Sauer argued on Wednesday on behalf of Trump, must be read to include “tariff regulation,” which he called “the quintessential, most historically-tested method of regulating imports.”

The response from the small businesses challenging the tariffs, as their lawyer Neal Katyal put it during arguments, is that this reading is nonsensical. “It’s simply implausible that in enacting IEEPA, Congress handed the president the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times,” he said.

The three liberal justices seemed to agree, and were joined by several Republican appointees who also showed serious doubts—likely enough to count to at least a five-vote majority to knock down Trump’s tariffs. Chief Justice John Roberts, who has used his position to do Trump a lot of favors, noted that Trump’s use of IEEPA to claim an unlimited tariff authority ran up against the separation of powers. Tariffs are “taxes on Americans, and that has always been the core power of Congress,” he said. Justice Neil Gorsuch, likewise a reliable pro-Trump vote, worried that gifting Trump a vast power to impose tariffs would be a “one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the People’s elected Representatives.” (This is not a worry Gorsuch expressed when he and other GOP appointees voted to exempt the president from criminal laws Congress wrote, or when they let Trump withhold funds appropriated by Congress, fire commissioners protected by Congress, gut agencies enacted by Congress, and ignore other statutes passed by Congress.) Something about taxes seems to reignite the GOP justices’ appreciation for democracy.

Near the end of Wednesday’s hearing, Justice Sonia Sotomayor voiced the same basic concern: “What we’re forgetting here is a very fundamental point, which is the Constitution is structured so that if I’m going to be asked to pay for something as a citizen, that it’s through a bill that is generated through Congress. And the President has the power to veto it or not, but I’m not going to be taxed unless both houses, the executive and the legislature, have made that choice.” She continued: “The president threatened to impose a 10 percent tax on Canada for an ad it ran on tariffs during the World Series. He imposed a 40 percent tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity. The point is, those may be good policies, but does a statute that gives, without limit, the power to a president to impose this kind of tax, does it require more than the word ‘regulate?’”

It seems likely that a majority will agree that “regulate” is not enough to transform the world economy and bestow on Trump the kind of erratic and unbound power Sotomayor described to impose tariffs whenever it strikes his fancy. 

But in knocking down Trump’s attempt to impose tariffs under IEEPA, the justices who have been so solicitous of his desires would be doing Trump another favor. Of course, the president, whose one consistent policy preference in life has been for protectionism, is unlikely to see it that way. Trump has weaponized tariffs as a means of control, not just over other countries, but as a tool to punish and reward loyalty from powerful Americans. But in doing so, he will make prices go up and employment go down. Those are not the conditions that a winning political party presides over.

It was likely not lost on the justices that hours before oral arguments, Democrats won sweeping victories in off-year elections. In the New York City mayoral election, Zohran Mamdani, a democratic socialist, won a resounding victory in what began as a long-shot campaign focused on the soaring cost of living. Democrats likewise won gubernatorial races in Virginia and New Jersey by focusing on affordability and won voters who said the economy was their foremost concern. As Trump builds a ballroom while withholding food aid, voters are increasingly skeptical of the idea that he is putting their wellbeing first.

As their discontent grows, an anti-Trump turn is a problem not just for the president, but also for the Republican-appointed justices, who may see their own majority on the court dismantled if Democrats return to power in 2028. Moreover, the Republican justices are firmly embedded in the larger project of elevating the interests of the GOP’s wealthy, white, and conservative Christian stakeholders. They have gone to bat for these interests again and again, including in their embrace of Trump. Letting Trump go wild with tariffs might, ultimately, help unravel that project.

One of the keys to cementing authoritarianism is to preserve a sense of normalcy while consolidating control. The way to do this—to allow most Americans to go about their days as they did before—is to make sure the economy stays on track. But Trump’s predilection for tariffs, and the levers of power they give him, make him an economic menace. Reining in Trump’s ability to issue tariffs in such a disruptive manner would ease his immediate economic impact, while still allowing him to impose some tariffs under other authorities. Roberts and some of his fellow conservatives on the Court may understand that to win the war, Trump must lose the battle. 

There is another element to the GOP wing’s political calculus. The ultra-wealthy donors who have spent millions create the court’s conservative 6-3 majority oppose these tariffs. The Koch network and its allies lean libertarian, and groups they support to pursue deregulatory and anti-labor agendas have signed on to represent the anti-tariff position in this case. Given that, a potential loss for Trump should not be taken as a simple win for liberals or the separation of powers, but primarily as a win for the plutocrats that the Roberts court has empowered and enriched for 20 years. They aren’t opposed to Trump, but they want to curb his anti-capitalist impulses. If they win, it will show they retain significant sway in the Republican firmament.

But if instead, after all the skepticism the justices showed for Trump’s tariffs, they grant him sweeping tariff power under IEEPA, it will demonstrate just how much sway he has over the justices—despite their better judgment.