The Supreme Court will make a decision on Wednesday, and the fate of Trump's tariffs rests with the three justices he appointed himself
The core of this case lies in whether the president has the authority to impose tariffs without explicit authorization from Congress during a national security emergency. Although the court is led by Republican-appointed justices, the positions of three key justices personally appointed by Trump—Barrett, Gorsuch, and Kavanaugh—are of great concern, as they have previously hinted that they may not support the president's claims for expanded powers. Analysis suggests that Kavanaugh is most likely to support the tariffs, Gorsuch has doubts due to his textualism, and Barrett's attitude is more pragmatic, making her one of the most unpredictable "swing votes." The final outcome of the case will depend on the voting tendencies of these justices
The U.S. Supreme Court will hear the Trump global tariff case on Wednesday local time, with three justices appointed by him—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—playing a key role in the ruling.
According to a previous article by Wall Street Insight, this case, which Trump has called "the most important in history," will not only determine the fate of this landmark policy but could also trigger refunds amounting to hundreds of billions of dollars. The case will decide the fate of most import taxes imposed since Trump took office, which he claims are authorized under the 1977 International Emergency Economic Powers Act, although the act does not explicitly authorize the imposition of tariffs.
For some time, the U.S. government's tariff policy has been embroiled in multiple domestic judicial lawsuits. Previously, according to CCTV News, on May 28 local time, a U.S. federal court blocked the tariff policy announced by President Trump on "Liberation Day" on April 2, ruling that Trump overstepped his authority by imposing comprehensive tariffs on countries that export more to the U.S. than they import. The lawsuit was filed by the nonprofit, nonpartisan litigation organization Freedom and Justice Center on behalf of five small U.S. businesses affected by the tariffs, marking the first significant legal challenge to Trump's tariff policy.
With the Supreme Court forming a 6-3 majority of Republican-appointed justices, this tariff case will directly review Trump's fundamental claim regarding the broad powers of the presidency. Notably, these three justices appointed by Trump have all suggested to varying degrees that they may not necessarily support his claim when the president seeks unprecedented tariff authority under the pretext of responding to a national emergency.
Companies and state governments challenging the tariffs may need to gain the support of at least two of the Chief Justice and the three Trump-appointed justices to win the case. According to media reports, the three liberal justices on the court may vote against Trump, while conservative justices Clarence Thomas and Samuel Alito typically support him.
Kavanaugh Most Likely to Support Tariff Policy
According to observers familiar with the Supreme Court, among the three justices appointed by Trump, Kavanaugh is the most likely to support his tariff policy. His stance in this case contrasts with his past role, as he has typically constrained his more conservative colleagues alongside Barrett or Chief Justice Roberts in other cases.
Kavanaugh is a staunch supporter of presidential power, especially when interpreting laws related to other matters or national security. He wrote in a case involving the Federal Communications Commission this June:
"The usual understanding is that congressional authorization grants the president ample power and flexibility to protect the United States and its people."
Kavanaugh made the above comment while discussing the "major questions doctrine," which may play a central role in the tariff case. According to this doctrine, federal agencies must obtain explicit congressional authorization to take actions of broad economic or political significance. Kavanaugh has stated,
"This doctrine has not yet been applied by this court in the realm of national security or foreign policy, as it does not reflect Congress's usual stance in these areas."
The challengers' best hope may lie in Kavanaugh viewing the tariff case as a question of the constitutional authority granted to Congress over tariffs and taxation, rather than the president's authority over tariffs and national security. Even so, opponents may find it difficult to persuade Kavanaugh. Elizabeth Prelogar, the chief attorney for the Biden administration and appellate lawyer at Kuley Law Firm in California, stated, "He may not be easily swayed by the plaintiffs challenging the tariffs."
Gorsuch's Position is More Uncertain
In contrast, Gorsuch may not support Trump as firmly in this case as he has in others. As a strict textualist, Gorsuch is likely to question Trump's invocation of a law that does not explicitly mention tariffs or taxation. The only relevant statement in the law regarding the authorization of taxation merely allows the president to "regulate" the "import" of products in emergencies.
Gorsuch is a staunch advocate of the "major questions doctrine" and the "non-delegation doctrine," which limits Congress's ability to delegate its constitutional legislative and taxing powers. In the Federal Communications Commission case, he stated that the non-delegation doctrine is particularly important as a check on Congress's ability to relinquish its domestic taxing authority.
According to former Biden administration Deputy Attorney General Elizabeth Prelogar's analysis, Gorsuch's likelihood of voting against Trump's tariffs may be greater than Kavanaugh's.
Barrett as a Pragmatic Textualist
Barrett is also a judge who values the text of the law, and she adopts a more moderate version of the "major questions doctrine" than some of her colleagues, describing it as a "commonsense" tool to help determine how much power Congress has delegated.
In 2023, Barrett wrote that since the Constitution grants all legislative power to Congress, "a rational interpreter would expect it to make significant policy decisions itself, rather than delegating them to another branch."
It is conceivable that Barrett would vote to block Trump's tariffs, viewing them as a similar "major policy decision" unauthorized by Congress. However, her opinion did not mention taxation or tariffs, nor did it clarify whether foreign policy or national security implications would affect her analysis.
Roberts Focuses on Practical Consequences
Chief Justice Roberts tends to be less focused on legal dogma than the justices appointed by Trump, instead considering the institutional role and practical impact of the court more. He cast the decisive vote in 2012 to support Obama's Affordable Care Act, even when he disagreed with Obama on major legal issues According to former Deputy Attorney General Donald Verrilli:
"The justices who will decide the outcome of this case will feel that they need to have a fairly strong argument on the substantive legal issues before confronting the president directly."
The report from the People's Daily Overseas Edition points out that this judicial showdown over the Trump administration's "tariff authority" is "not only a trade policy dispute but also a verification of the boundaries of the powers of the U.S. president in the Constitution."
