President Donald Trump’s unprecedented use of tariffs to exact billions of dollars from American importers during self-declared national emergencies was intensely scrutinized Wednesday by the U.S. Supreme Court.
Many of the justices seemed unconvinced that a law known as the International Emergency Economic Powers Act (IEEPA) awarded Trump with unfettered ability to tariff any country, at any level, for as long as desired, since the Constitution gives Congress primary power to collect taxes.
But the three Trump-nominated justices -- Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett -- notably stood out during oral arguments for apparent shared interest in legal rationales that could deliver the president a win.
Statistically, those three justices have been key votes. After Chief Justice John Roberts, it was Kavanaugh, Barrett, and Gorsuch in the court's last term who were most often in the majority in narrowly-divided cases, according to SCOTUSblog.
The Trump justices are "likely to decide the case," said Sarah Isgur, SCOTUSblog editor and an ABC News legal contributor.
While much of the debate during oral arguments centered on the meaning of a president’s ability to "regulate importation" under the law -- which does not mention tariffs -- Gorsuch, Kavanaugh and Barrett zeroed in on a separate phrase that they each suggested could give the president cover.
The law says the president may regulate importation "by means of … licenses or otherwise." The Trump administration argued licensing -- or, the payment of a fee as a form of permission to import goods -- is "very, very similar" to tariffs, which are "economically equivalent."
"This license thing is important to me," declared Justice Barrett during an exchange with the tariff challengers’ attorney Neal Katyal.
Justice Gorsuch, who at one point voiced concern about Trump’s potential violation of separation of powers, later appeared hyperfocused on the plain text of the law.
"The statute says the president may, by means of licenses or otherwise, regulate importation," Gorsuch pointed out. "Maybe the President could simply recharacterize these tariffs as licenses or rejigger the scheme so that they are licenses."
When Katyal pushed back, saying using the word 'license' to let Trump "tariff the world" would be a stretch, Gorsuch replied: "But you're not disputing 'licenses or otherwise' means what it says."
"Gorsuch seemed to be saying that the plain language of the statute in fact did clearly delegate this authority [to Trump]," wrote Josh Blackman, a constitutional law scholar and professor at South Texas College of Law, in a blog post.
Justice Kavanaugh appeared to take the possible legal justification for Trump’s tariffs a step further.
He repeatedly emphasized a unanimous 1976 Supreme Court decision that upheld President Gerald Ford’s authority to impose monetary import adjustments -- or fees -- on oil even though the word "tariffs" wasn’t mentioned in the relevant law.
"Attorneys standing where you are stood up and said the license fee now before the Court involves the broadest exercise of the tariff power in the history of the American republic," Kavanaugh said to Katyal of the Ford case. "The court, obviously 9-0, rejects that argument."
Justice Barrett doubled down on Kavanaugh’s point, saying the Ford-era precedent "rejects the idea that it was impermissible to use the fees, and we can call them license fees, that functioned as tariffs or duties."
That court said "that Congress could use the exaction of money to control quantity," Barrett said, signaling a potential view of Trump’s tariffs as purely regulatory measures as opposed to purposefully revenue-raising ones.
The tariffs at issue in the Trump case have collected more than $89 billion so far for the U.S. Treasury, officials said.
"On balance, Justice Barrett did not seem convinced that the government lost under the statute," Blackman said. "I think she is a likely vote for the government here."
Barrett and Kavanaugh also seemed to coalesce around the idea that Trump’s tariff power was a “common sense” interpretation of Congress' emergencies law, which indisputably gives a president authority to cut off trade entirely if necessary.
"Why would a rational Congress say: 'Yeah, we're going to give the president the power to shut down trade ... but can't do a 1% tariff? That doesn't seem to have a lot of common sense behind it," Kavanaugh said.
"The court has repeatedly said a tariff on foreign imports is an exercise of the commerce power, not of the taxation power,” Kavanaugh said.
Barrett pressed Oregon Solicitor General Benjamin Gutman, representing the states, on the same point: "Doesn't it seem like it would make sense that Congress would want the President to use something that was less, you know, weaker medicine than completely shutting down trade as leverage to try to get a foreign nation to do something?"
All told, after nearly three hours of arguments, few of the justices seemed interested in deeply probing the practical implications of striking down Trump’s tariffs -- perhaps a sign that few justices considered it a likely outcome.
"It seems to me like it could be a mess," observed Barrett succinctly.
Many legal experts said, despite early skepticism from the justices towards Trump’s broad assertion of tariff power, the case remains a toss-up, largely because of mixed signals from the president's three appointees
"The fundamentals are still working against the Trump administration," said Isgur. "This is a court that believes in separation of powers and the structural constitution, and the government’s theory of the case is an aggressive expansion of presidential power at the expense of Congress.”
The court's three liberal justices -- Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson -- voiced the strongest skepticism of Trump's tariffs. Conservative Justices Clarence Thomas and Samuel Alito signaled views mostly sympathetic to the president.
Blackman feels more certain about the outcome, after closely watching Gorsuch, Kavanaugh, and Barrett.
"This case is close, but I think that ultimately the tariffs are upheld," he wrote.