Conservative justices are skeptical. View this email in your browser [link removed]

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****NOVEMBER 5, 2025****

****On the

**Prospect **website****

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A Democratic Sweep [link removed]

Riding on the public’s pervasive economic anxiety and its substantial but not quite so widespread fury and fear of Trump’s trashing of American democracy, the Democrats won big from coast to coast yesterday.**BY** [link removed]

**HAROLD MEYERSON**

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New Yorkers Say Yes to Mamdani, That’s Spelled M A M D A N I [link removed]

Volunteers and advocates said the best thing to do today is celebrate, rest—then keep organizing.

**BY** [link removed]

**WHITNEY CURRY WIMBISH**

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California Democrats Win Redistricting Measure, Prove That Resistance Works [link removed]

With Prop 50, Democrats whittled down Trump’s gerrymandering scheme by deciding to fight.

**BY** [link removed] 

**DAVID DAYEN**

****Dayen on TAP****

**Supreme Court poised to defy Trump on tariffs**

**The conservative justices weren’t buying that the president has unlimited authority to use an emergency statute for open-ended tariffs.**

The Supreme Court heard arguments for nearly three hours on President Trump’s authority to overhaul the tariff system of the United States through an emergency statute. Trump decided at the last minute not to show up to the hearing, and it’s a good thing he did, because he would have wanted to change the channel.

Most of the conservative justices seemed pretty skeptical of the argument that the International Economic Emergency Powers Act (IEEPA), which allows a president in an emergency to “regulate importation and exportation,” confers worldwide, unlimited tariff authority that could raise as much as $4 trillion over a decade, per the government’s brief. Solicitor General D. John Sauer characterized these as “regulatory tariffs” and not taxes, designed to change consumer behavior by buying domestically and as leverage on other countries for purposes of negotiation. The justices weren’t totally buying that.

“Can you point to any place in the [U.S.] Code where that phrase [“regulate importation”] connotes tariff authority?” asked Justice Amy Coney Barrett. Sauer cited the Trading With the Enemy Act, but that was in a wartime context and not the government’s main argument. He mentioned Section 232 of the Trade Expansion Act of 1962, but that says “adjust imports by any means necessary,” and the context is clearly about tariffs.

Justice Neil Gorsuch was even more brutal. He began by asking if Congress could delegate the power to regulate commerce with foreign nations or impose duties; these of course are verbatim pulls from Article I of the Constitution, which explicitly confers those powers on Congress. Sauer said he didn’t think so, but Gorsuch emphasized that this is the logic of the government’s view. “You are saying that the president has inherent authority of all foreign affairs. So what if Congress says we’re done with legislating and hands it all off to the president? What stops Congress?”

Essentially, Gorsuch was saying that a German-style Enabling Act wasn’t permissible under our Constitution. And Sauer conceded the point.

Gorsuch added that presidents would have the upper hand in keeping delegated powers if the courts allowed it. Only legislation they could veto could stop them. “It’s a one-way ratchet toward the gradual accretion of power and away from the people’s representatives,” Gorsuch said. Justice Barrett agreed with this.

Sauer cited the 2023 shuttering of the COVID emergency, but a relatively controlled infectious disease is far different from unilateral tariff power at the president’s whim, which as Justice Sonia Sotomayor said, could even include an advertisement by the province of Ontario, Canada, that he doesn’t like.

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Conservative jurists have stepped in on congressional transfers of power to the executive before, with the nondelegation doctrine or the major questions doctrine. Indeed, Chief Justice John Roberts appears to be itching to use the major questions doctrine in this case. It’s often used selectively to prevent progressive impulses from government. In this case, there’s a pretty plain reading that Trump is seizing virtually unlimited power that Congress never thought it was giving. The justices may see this as a venue to show that they apply major questions equally, giving it more force.

Even the hard-liners appeared to know they were cooked. In arguments with plaintiff’s lawyer Neal Katyal, Justice Samuel Alito threw out a bunch of hypotheticals to try to smuggle in tariff authority. He then went on to ask why the president couldn’t just use Section 338 of the Tariff Act of 1930 to authorize his tariffs. Katyal rightly said that wasn’t at issue in the case and the government never brought it up. Alito then suggested it would just be faster to assume the government will shift its authorities away from IEEPA. “Shouldn’t we address it now and get it over with?” he asked.

It wasn’t a serious set of reasoning (is it ever with Alito?). How can the Court be justified in arguing a separate precedent for the government? Alito was reduced to smirking that Katyal had to argue for nondelegation, something normally reserved for conservatives.

The Court is not going to act as a human shield for Trump here. That doesn’t rob the president of tariff options. It came up several times in the hearing that Trump can use Section 122 of the Trade Act to deal with trade deficits, but they are limited to 15 percent for 150 days (though they could be renewed by Congress). I suspect that he will do so, buying time for other tariff impositions that require a real process.

But as I said back in May [link removed], Trump wanted to push it, to unilaterally impose tariffs whenever he wanted to, for whatever reason he wanted, without any constraints whatsoever. The Supreme Court is about to respond, “No, you can’t.”

**–DAVID DAYEN**

Follow David Dayen on Bluesky [link removed]

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