Sotomayor intervenes as Barrett presses Trump's tariff powers
Judge Amy Coney Barrett pressed Solicitor General John Sauer over President Donald Trump's tariff powers, citing precedent, while Justice Sonia Sotomayor urged him to answer Barrett's questions directly during oral arguments at the Supreme Court.
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Judge Amy Coney Barrett asked questions about the law on Wednesday. Donald Trump called for global tariffs, joining several other justices on the right and left in expressing skepticism about the president's ability to use a tool he views as critical to advancing his economic agenda.
Attorney General John Sauer argued repeatedly during lengthy oral arguments that lasted two and a half hours that the emergency law Trump used to impose tariffs on nearly every U.S. trading partner contained provisions to regulate imports, which Sauer said included the use of tariffs. The relevant law allows the president to “regulate… annul [and] void…import”, but it does not use the word “tariff”. Barrett pressed Sauer on this issue.
“Can you point to any other place in the code or any other point in history where that phrase together, ‘to regulate imports,’ was used to provide authority to impose tariffs?” asked Barrett, a Trump appointee.
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U.S. Supreme Court Associate Justice Amy Coney Barrett speaks at the Ronald Reagan Presidential Library Foundation in Simi Valley, California, Monday, April 4, 2022. (AP)
Sauer noted another trade law that served as a precursor to the emergency legislation in question, but Barrett seemed unconvinced, repeating her question as Sauer failed to provide direct answers.
Justice Sonia Sotomayor, an Obama appointee, intervened, asking Sauer to “just answer the judge's question.”
Sotomayor noted at one point that no president had ever used the emergency law known as the International Emergency Economic Powers Act to impose tariffs, although Sauer argued that President Richard Nixon's tariffs were used in this way even if IEEPA did not exist at that stage.
“It is the power of Congress, not the president, to levy taxes,” Sotomayor said. “And you want to say that tariffs are not taxes. But that's exactly what they are. They bring money to American citizens, income.”
Liberal Justice noted that Congress always used the phrase “to regulate and tax” together, suggesting that the absence of any mention of tariffs or taxes in the language of the law was intentional and that Congress deliberately did not grant these powers to the President.
“Are you telling us that with regard to the use of the word “regulate” in other laws, the mention of taxation is redundant? They didn't have to do that?” Sotomayor asked.
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US Supreme Court Justice Sonia Sotomayor appeared on The View on May 21, 2024. (Jahi Chikwendiu/The Washington Post via Getty Images)
Both Barrett and Sotomayor also elaborated on other verbs in the law, emphasizing the lack of tariff powers.
“For me, things like ‘cancel’ and ‘cancel’ have specific meanings. “I agree with you that ‘regulate’ is a broader term, but I think those words have a lot of meaning,” Barrett said.
Sotomayor was more blunt: “The verbs that accompany the word ‘regulate’ have nothing to do with raising tax revenue.”
The case has become one of the most closely watched this term and poses a new question for the high court that Trump this week framed as “life or death.”
“Our stock market is constantly at all-time highs, and our country has never been more respected than it is now,” Trump wrote on Truth Social. “A big part of that is the economic security created by the tariffs and the deals we got because of them.”
Sauer told the justices that Trump believes the trade deficit and opioid epidemic are “country-killing and unsustainable” and that he has chosen to address them by using IEEPA to impose tariffs. Sauer highlighted the success of trade agreements that Trump has reached with leading foreign competitors such as Chinadue to the president's choice of tariffs.
“By unwinding these agreements, [Trump] warns, will expose us to ruthless trade retaliation from far more aggressive countries and take America from strength to collapse with devastating economic and national security consequences,” Sauer said.
Sauer argues that the emergency law gives the president the power to regulate imports and that “the power to impose tariffs is its primary use,” even if it is not expressly stated in the law.
Several lower courts have struck down Trump's IEEPA-based tariffs. (Getty Images)
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In addition to the liberal justices and Barrett, other Republican-appointed justices have expressed skepticism, including Chief Justice John Roberts, who questioned how far beyond the law the president's emergency powers go.
“The exercise of power is to impose tariffs, and the law does not use the word 'tariffs,'” Roberts said.
