Unleash Prosperity senior fellow David Simon reported the following concerning the Supreme Court oral argument in the tariffs case this week.
Two issues dominated the oral argument. Does a president's inherent power concerning foreign policy under the Constitution include the power to impose tariffs-taxes? And, does the International Emergency Economic Powers Act, the statute on which President Trump relied, allow a president to impose tariffs?
The Justices' questions and comments provide conflicting signals regarding how they will rule.
Chief Justice Roberts suggested that the Trump Administration views the president's inherent foreign policy too broadly, but he, along with Justice Kavanaugh, also suggested that the challengers view it too narrowly. Justices Kagan, Sotomayor, Jackson, and Gorsuch appeared more skeptical of the Administration's position.
Chief Justice Roberts and Justices Kagan, Sotomayor, and Jackson expressed doubt that IEEPA's power to "regulate" imports includes the power to impose tariffs. Justices Kavanaugh, Gorsuch, and Barrett indicated that they see arguments for both sides on this issue. Justice Alito showed the most sympathy for the Administration's position.
Our view is that tariffs are, of course, taxes, and so they must require congressional approval, except in extraordinary times. The legal beagles we consult, consider a 6-3 or 7-2 decision against Trump the most likely outcome. Some of the tariffs may be allowed to stand and others will be struck down.