Trump administration attorneys asked the Supreme Court on Wednesday night to overturn Friday’s appeals court decision finding that most of Trump’s tariffs are unconstitutional. The filing came after Trump at a Tuesday press conference — ostensibly about moving Space Command from Colorado to Alabama — said his administration would swiftly seek a SCOTUS ruling.
The Justice Department also asked for a motion to expedite briefing on the merits and oral arguments.
Solicitor General D. John Sauer cast the stakes in apocalyptic terms.
“The President and his Cabinet officials have determined that the tariffs are promoting peace and unprecedented economic prosperity, and that the denial of tariff authority would expose our nation to trade retaliation without effective defenses and thrust America back to the brink of economic catastrophe,” he wrote in his filing.
There is no evidence that America was on “the brink of economic catastrophe” prior to Trump taking office last November. Unemployment had reached historic lows and, though inflation climbed, incomes also continued to grow.
The Supreme Court’s six conservative justices have in the past ruled in ways that suggest they’d be skeptical of Trump’s expansive application of executive powers under the International Emergency Economic Powers Act, or IEEPA. The right-wing justices struck down former President Joe Biden’s attempt through executive action to wipe out $400 billion in federal loans, for example, and have in recent years often outlined a vision of a narrowly constrained administrative state in which agencies have few powers not explicitly outlined by Congress. Trump’s expansive interpretation of IEEPA would seem to fly in the face of that view of the executive branch’s power.
Sauer sought to address this head on in his filing, claiming that Trump’s interpretation of IEEPA squared with the “major-questions doctrine,” a favorite theory of this Supreme Court that holds that the ability to tackle any “major” policy question must be explicitly granted by Congress to the executive branch. “Congress has long granted Presidents capacious authority over tariffs, and IEEPA is a particularly broad delegation in the domains of foreign policy and national security — areas that implicate the President’s expertise and independent constitutional authority,” he wrote.
Lower courts disagreed with that contention.
Limited views of executive branch agency power aside, conservatives on the Supreme Court have often ruled in Trump’s favor, employing selective readings of history and contortions of the Court’s own past rulings to do so. One such contortion came in a recent emergency docket decision in which the conservative justices seemed to suggest that independent executive branch agencies were still largely under the control of the president — not truly independent — while somehow still upholding the Federal Reserve’s independence. 2024’s sweeping grant of presidential immunity against criminal prosecution to Trump involved another creative reading of history and the Constitution.
“The administration’s problem is that even if a court agreed with the President that the statute delegated broad authority to impose wide ranging tariffs on nearly all goods imported from nearly every country in the world, that would raise another constitutional problem,” Jeffrey Dunoff, a public international law expert and law professor at Temple University, said via email. “Tariff policy is a core congressional function, and delegating unlimited tariff power to the president would violate separation of powers principles.”
The administration has leaned heavily on the outcome-based arguments throughout this case, outlining scenarios of gloom, doom and destruction should the tariffs ultimately be overturned.
But constitutional law expert and counsel for the parties suing Trump, Michael McConnell, told TPM outcome-oriented arguments like these shouldn’t be relevant.
The impact of revoking the tariffs, and therefore the justices’ findings, shouldn’t “depend upon anyone’s view of whether the tariffs are good or bad — and we have carefully refrained from making a policy argument about that,” said McConnell, who represents the several small businesses who brought a claim against the administration. “That doesn’t mean,” he later added, “that there aren’t extremely powerful policy-based arguments against the tariffs.”
In a statement, Liberty Justice Center senior counsel Jeffrey Schwab — representing the plaintiffs, businesses who sued the administration — said the firm was confident its legal arguments would “ultimately prevail.
“These unlawful tariffs are inflicting serious harm on small businesses and jeopardizing their survival. We hope for a prompt resolution of this case for our clients,” he said.
The administration asked the court to decide whether to hear the case by Sept. 10 and, if it granted cert, to hold arguments as early as the first week in November, according to reports. The court’s new term begins on Oct. 6.
“Swift review of that decision is necessary to avoid derailing critical ongoing negotiations with our foreign trading partners and threatening broader U.S. strategic interests internationally,” Treasury Secretary Scott Bessent reportedly wrote in a filing.
A spokesperson from Liberty Justice Center told NBC they agreed to the administration’s timeline.
The U.S. Court of Appeals for the Federal Circuit ruled Friday that Trump overstepped the powers outlined to him in IEEPA, when he used the act to declare national emergencies and apply a series of blanket tariffs to nearly every country in the world. The 7-4 decision threw a wrench in Trump’s signature economic policy of securing “deals” with foreign governments purportedly in exchange for things like increased tariffs revenue to fund his multi-trillion dollar tax cut and spending package, increased access to foreign markets for U.S. companies, and support for domestic manufacturing.
The appeals court suspended its ruling until Oct. 14, allowing Trump’s tariffs to stay in place for now. The Supreme Court could further stay the ruling.
SCOTUS must now decide whether or not to take on the case. The court’s new term starts Oct. 6.
“The clear constitutional provision and specific statutory language involved in this case provide the court an opportunity to reject the President’s expansive invocation of emergency powers and vindicate core separation of powers principles,” said Dunoff.
McConnell, the constitutional law expert, said he wouldn’t make a prediction on how the Supreme Court would rule if it decides to hear the case. Prior to joining the suit, McConnell wrote in May that “there is a substantial probability that the Court of International Trade will hold the Trump tariffs unlawful.” That court was the first to strike down the tariffs.
