Advisory Opinions – "Trump’s Tariff Showdown"

Podcast by The Dispatch
Date: November 4, 2025
Hosts: Sarah Isgur & David French

Episode Overview

This episode dives deep into the impending Supreme Court oral arguments over the legality and constitutionality of tariffs imposed by President Trump under the International Emergency Economic Powers Act (IEEPA). The hosts analyze the statutory and constitutional questions at play, offer strategic guidance to listeners ahead of the big argument, discuss court internal dynamics (with a focus on the liberal justices), and wrap up with updates on notable "interim docket" (emergency) Supreme Court cases. Touches of humor and practical "sideline reporting" keep the tone lively and conversational.

Main Themes and Segments

1. Live Podcast, CLEs, and Setting the Stage for the Tariff Argument

• [03:00]–[07:35]
  • Announcement: Advisory Opinions will host a live, post-oral-argument podcast available for CLE credit (Continuing Legal Education), featuring expert guests including SCOTUSBlog’s Amy Howe.
  • SCOTUSBlog will conduct a live blog during the argument; C-SPAN to cover it as well.
  • CLE experiment: If successful, AO may offer 12 sessions per year, covering most states’ annual requirements.
  • Sarah: “This will be a little bit of an experiment, David, to see whether this is something our audience is actually excited about and would help them.”

2. Supreme Court Tariff Case: Key Questions and Arguments

• [05:57]–[15:07]
  • Questions Before the Court:
    1. Does IEEPA give the President authority to impose tariffs?
    2. If so, is that delegation to the President constitutional?
    3. If it’s both lawful and constitutional, did Trump meet the act’s requirements when establishing his tariffs?
  • David: "They are really, really going to focus on the foreign setting of this. ... You've got a statute that's much more reminiscent of OSHA, much more reminiscent of student loans, but you have the diplomacy aspect." [07:35]
  • The argument structure: 40 minutes for the Solicitor General (government), 20 for private parties, and 20 for state parties, with expected overruns due to seriatim questioning.
  • Trump’s Argument:
    • Asserts IEEPA’s “plain text” gives the president broad powers to set tariffs during emergencies; emergencies determined at the president’s discretion (e.g., citing trade imbalances and fentanyl as “national security” risks).
    • Sarah reading SG’s brief: “With tariffs, we are a rich nation. Without tariffs, we are a poor nation. ... President Trump’s IEEPA tariffs are plainly lawful.” [09:20]
  • Opponents’ Argument (private parties & states):
    • Congress—not the president—holds the power to tax and set tariffs; IEEPA doesn’t mention tariffs by name.
    • “The question is not whether America is a rich nation or a poor nation… The question, as in other recent cases of executive overreach, is who decides?” [11:07]

Lower Court Opinions

• District Court: IEEPA does not authorize tariffs—“regulate importation” doesn’t equate to imposing tariffs.
• Federal Circuit: IEEPA may authorize some tariffs, but not “these tariffs or any other tariffs that might be too enduring, too significant, too widespread.” [11:07]

3. Arguments Preview: Steelmanning Both Sides

• [15:07]–[21:22]
  • David (for the government):
    • “Read the statute. That grant of power is broad. … Congress can do something about this, and they're not doing anything about it at all. So you combine a very broad grant of authority…with presidential emergencies, you just have a very large no go zone for the court around diplomacy.” [15:07]
  • Sarah:
    • Introduces the nondelegation doctrine (can Congress give away its core powers?) vs. the “major questions” doctrine (did Congress clearly delegate this power at all?).
    • “Can Congress delegate away such massive amounts of its taxing authority to the discretion of the President when it is explicitly a power given to Congress in the Constitution?” [17:25]
  • David:
    • “If you have an Article I power that is explicit and you're arguing it's been delegated and the delegation doesn't include the exact language of the power, that's one of your weak points.” [20:11]

4. Behind the Scenes—Oral Argument Prep and Public ‘Vibe Check’

• [22:59]–[29:46]
  • Getting your side’s narrative into the news before argument—quotes from Michael McConnell (counsel for business plaintiffs): “It is practically what the American Revolution was fought over. The principle that taxation is not legitimate unless it is adopted by the representatives of the people.” [23:39]
  • "Vibe checks" from the administration: Treasury Secretary Scott Besant on the Sunday shows, pitching the tariffs as vital emergency powers.
  • Amicus Briefs:
    • “About six amici for the government… just under 40 amici against the tariffs. It’s a big gap to your point of whether it matters? Yes and No.” [28:08]
    • David and Sarah discuss how the lopsidedness reflects the merits—or at least the perception thereof—and how it can also backfire by watering down strong arguments.

5. Insider Tips: Mooting, How Advocates Prepare, and Oral Argument Rituals

• [29:46]–[33:45]
  • Who argues for the private parties (Neil Katyal wins a coin flip between two Supreme Court veterans).
  • Details about “moot courts” as preparation: “It’s not that you bring in nine lawyers… It’s more likely around five… They're just asking the hardest questions, trying to make it harder than it will be in the actual argument.” [26:24]
  • Day-of logistics: advocates’ outlines, locker rooms for electronics, and “cranking” the podium as a subtle flex.
  • Sarah: “The first words out of Neil Katyal’s mouth or anyone else presenting an oral argument to the court is always, ‘Mr. Chief Justice, and may it please the court.’” [29:46]

6. Relevant Precedent: Dames & Moore v. Reagan

• [33:45]–[34:26]
  • Old precedent relevant to presidential power and IEEPA; connections between past and present players (Roberts, McConnell).
  • David: “Yes, it is a case for the proposition that IPA grants the president some authority over imports assets of hostile countries. But it’s factually so very different from this one, just night and day different from it… It gets them out the garage, maybe.” [33:45]

7. Supreme Court Dynamics: Liberal Justice Divide (Kagan/Sotomayor/Jackson)

• [34:26]–[44:04]
  • Discussion of Jodi Kantor’s NYT piece on the internal split between Justices Kagan (strategist, coalition-builder) and Jackson (outsider, “fire alarm raiser”).
  • Dan Epps quote: “It’s sort of like war. If you’re outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away?” [36:24]
  • David: “The majority of this Court is not a steamroll, steamroll, steamroll court. And that’s been proven time and time again.” [36:24]
  • Sarah: “Justice Jackson seems far more inclined to undermine the institution qua institution. … I just think that itself a. I think it’s ahistorical.” [39:00]
  • Discussion of the “end game” for dissent-as-protest vs. institution-building: “What is the end game? Because it feels to me if you’re trashing the institution and trashing the institution, there’s something you want to happen… and everything that I just said seems pretty grim to me.” —David [42:23]

8. Interim Docket Cases

A. National Guard Deployment to Chicago

• [44:46]–[49:52]
  • New focus from the court: what does “regular forces” mean? Influential amicus brief suggests “regular forces” means standing military, not civilian law enforcement.
  • David: "I am so mad at myself, Sarah. ... Regular forces, especially in connection with a statute about the National Guard, which are the reserve forces. ... It’s right there in the statute." [47:37]
  • The emergency is drawn out; not a “shadow docket” case anymore.

B. Passports and Gender Markers

• [49:52]–[53:20]
  • Recent change (Biden: allows M/F/X for sex marker based on gender identity; Trump: reverts to biological sex only).
  • Sarah: “If the Biden administration could do it and it wasn’t arbitrary and capricious to change it, then why can’t the Trump administration do it? Why would that be arbitrary and capricious to change it back?” [49:52]
  • Both agree: legally Trump will likely win; policy-wise, both sides miss practical identification concerns.

C. Unclean Hands Doctrine and Federal Litigation

• [53:20]–[59:02]
  • Discussion of new Bode & Bray scholarship: courts shouldn’t consider the administration’s “big picture” bad faith, but may consider direct contradictions in representations to the court.
  • David: “If you have the CEO, the president, issuing declarations about the conditions on the ground to justify an injunction ... that are completely different from the justifications given in the court papers, you better believe, as opposing counsel, I can bring in the CEO's statements and say, what are we doing here?" [56:51]

9. Student Speech: Angry Cheerleader Sequel in the Second Circuit

• [59:24]–[65:39]
  • Second Circuit reverses punishment of a student for an insensitive off-campus social media post, citing Supreme Court precedent (“angry cheerleader” case—Mahanoy).
  • David: “Tinker suggests that the more relevant question is disorder or disturbance on the part of the petitioners, that is disturbance on the part of the speakers themselves. ... The responsibility shifts to the hearers to respond appropriately to the speech." [63:07]

10. Judicial Minimalism and Expertise

• [65:39]–[66:40]
  • Discussing Andy Smarek’s SCOTUSBlog piece: should justices defer more, knowing their paths to the bench have cost them practical, real-world expertise?
  • Both hosts express mixed feelings about judicial minimalism in this political moment.

Memorable Quotes & Moments

“It is practically what the American Revolution was fought over. The principle that taxation is not legitimate unless it is adopted by the representatives of the people.”
—Michael McConnell, Axios, [23:39], read by Sarah

“You've got a statute that's much more reminiscent of OSHA, much more reminiscent of student loans, but you have the diplomacy aspect.”
—David French, [07:35]

“And so will you see the court finally or at long last, sort of rev up the non delegation motor, or will they use major questions as a way to almost avoid that?”
—Sarah Isgur, [17:25]

“You combine a very broad grant of authority ... and really what you’re left at with is a policy argument against Trump. ... Again, you’re not the court of last resort on bad policy choices. You’re the court of last resort when it comes to questions about the law.”
—David French, [15:07]

“Justice Jackson seems far more inclined to undermine the institution qua institution. ... I just think that itself a. I think it’s ahistorical.”
—Sarah Isgur, [39:00]

“Tinker suggests that the more relevant question is disorder or disturbance on the part of the petitioners, that is disturbance on the part of the speakers themselves.”
—Second Circuit opinion, highlighted by David French, [63:07]

Timestamps for Key Segments

• [03:00] CLE/Live Podcast announcement
• [05:57] Setting up the tariffs argument—three central questions
• [07:35] David’s preview of oral argument focus
• [09:20] Solicitor General’s summary of Trump’s case (quoted by Sarah)
• [11:07] States’/Opponents’ core constitutional arguments
• [15:07] David’s “steelman” of government argument
• [17:25] Debating nondelegation vs. major questions doctrines
• [23:39] Michael McConnell Revolutionary War quote
• [28:08] Amicus brief lopsidedness: does it matter?
• [33:45] Dames & Moore v. Reagan precedent
• [36:24] Kagan-Jackson NYT “strategy divide” analysis
• [44:46] National Guard/”regular forces” interim-docket debate
• [49:52] Passport gender marker legal fight
• [53:20] Unclean hands doctrine/DOJ litigation “cleanliness”
• [59:24] Second Circuit student speech/“angry cheerleader” sequel

Final Notes

• Next episode will be live (video) post-argument, CLE-credit eligible, and podcasted as usual (~12:30/12:45pm ET).
• Bonus: Insights on Supreme Court advocacy rituals, how amicus briefs can backfire, and the changing composition and ethos of the Court.
• Upbeat, thoughtful, with the usual blend of legal analysis and practical “inside baseball.”

This summary is designed for both legal professionals tracking the Supreme Court’s term and interested lay listeners keen to understand how law, policy, and personality collide at the Court.