Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: When Tariffs Crashed Into SCOTUS

Date: November 8, 2025
Host: Dahlia Lithwick (A)
Guests:

• Mark Joseph Stern (B), Slate legal analyst
• Mark Busch (C), Professor of International Business Diplomacy, Georgetown
• (And participation in argument by Chief Justice Roberts, Solicitor General Sauer, Justice Barrett, Justice Sotomayor, Justice Kagan, Justice Gorsuch)

Episode Overview

The episode explores the Supreme Court oral arguments in the challenge to Donald Trump’s “Liberation Day” tariffs, imposed under a broad claim of authority in the International Emergency Economic Powers Act of 1977 (IEEPA). Central to the discussion is whether the President can unilaterally impose tariffs in the name of an economic emergency, the statutory and constitutional limits of such power, and the high-stakes implications for separation of powers. The case (Learning Resources v. Trump/Trump v. Vos) has broad implications for trade, executive authority, and the future of congressional power over taxation and economic regulation.

Key Discussion Points & Insights

1. Setting the Legal & Historical Stage

• Foundational Statutes:

  • IEEPA (1977): Grants the President authority to regulate transactions with foreign actors during an "unusual and extraordinary threat."
  • 1974 Trade Act (esp. Section 122): Owns explicit provisions for tariffs in balance-of-payments crises.
  • The Trading with the Enemy Act & Yoshida case(s): Key precedents in parsing presidential trade and emergency powers.

• Historical Context:
  Nixon's 1971 temporary import taxes and monetary policy upheavals are the legislative and policy backdrop. Confusion persists over which authority he really invoked, and Congress’s intent matters deeply.
  (C, 02:25):
  “IEEPA is, as you heard during the oral arguments, the follow through to the turmoil that was created when Nixon began to go off gold...a lot of what you heard goes back to what everybody thought was learned from that moment...”

2. Micro vs. Macro Legal Analysis

• The Court’s questioning ran the gamut: parsing the minutiae of statutory verbs (e.g., “regulate” vs. “impose tariffs”) while keeping one eye on the large questions of constitutional checks and balances.

• Argument from the government leans on a distinction between “regulatory” and “revenue-raising” tariffs—a move the panel and many amici economists decry as fictitious.

• Katyal (for the plaintiffs) launches with: “tariffs are taxes”—a frame which seemed to stick.

  (C, 06:50):
  “...the Department of Justice really pinned its hopes on an absurd argument about regulatory tariffs versus revenue raising tariffs...Sauer is really pinning his hopes on this absurd distinction which no economist would venture forward to propose.”

• Economics Missing From the Room:
  Despite numerous economists filing amicus briefs, the economic realities of trade deficits and capital flows were largely left aside by the Justices. (B, 11:35):
  “A trade deficit is exactly matched by a country's net capital inflow. So what the government is calling a deficit could also be described as a foreign investment surplus.”

3. Who Pays Tariffs? The Congressional Power of Taxation

• Robust skepticism from several Justices—most notably Chief Justice Roberts and Justice Sotomayor—about the claim that tariffs are not effectively taxes on Americans.

  Memorable exchange:

  • Roberts (D, 15:00):
    “The vehicle is imposition of taxes on Americans. That has always been the core power of Congress...to have the President's foreign affairs power trump that...seems to me to...neutralize between the two powers...”
  • Sotomayor (paraphrased): Directly asks about the pass-through of tariff costs to US manufacturers and consumers.

  (C, 16:13):
  “Wow, what a relief to hear them utter that line, terrorists are taxes...the evidence we have...is that the pass through rate is about 80% to Americans...these as anything other than what they are, which is a tax...that disproportionately hurts American manufacturers...”

4. The Major Questions Doctrine and Separation of Powers

• Major questions doctrine: Should sweeping action on “major” economic issues by the Executive require explicit, unambiguous congressional authorization?

• Chief Justice Roberts signals major skepticism that IEEPA can be twisted to authorize such immense economic interventions:

  • Roberts (D, 20:10):
    “...you have a claim sourced in IEEPA that had never before been used to justify tariffs...power to impose tariffs on any product from any country for, in any amount, for any length of time. That seems like...authority...maybe...a misfit. So why doesn't it apply again?”
  • Solicitor General Sauer’s (F) defense: Insists the major power was clearly delegated for major emergencies, hoping to secure judicial deference.

• Mark Busch’s take: Trump’s overreach (both in scale and in sweeping nature) forced the Court to confront the issue seriously, denying the chance for a narrow ruling.

  (C, 21:44):
  “Trump overplayed his hand. These were big tariffs and they made a big impact. And because of their bigness, he denied the Supreme Court the opportunity to come up with a narrow ruling.”

• Stern’s take: The major questions doctrine was invented to defeat Biden polices, so this is an opportunity for doctrinal consistency. (B, 24:45):
  “...this is an opportunity for some of those justices...to show their consistency and principle and to say, no, it's not something that we only made up to rule against Democratic presidents...”

5. Limits (or Lack Thereof) on Executive Emergency Power

• The Justices and guests repeatedly highlight: If Trump’s logic prevails, there are no real, practical constraints left. Any President could declare any “emergency” (even something like climate change) and assert tariff powers unlimited in scope and duration, sidestepping Congress. Congressional guardrails (like the vote to end emergencies) are nearly insurmountable.

  • Justice Gorsuch (paraphrased, 38:06): Under your theory, could a president impose a 50% tariff on gas cars in the name of a “climate emergency?” Sauer: basically, yes.

• Justice Barrett zeroes in on the government’s linguistic games, asking for precedent where “regulate importation” means “impose tariffs”:

  • Barrett (G, 28:57):
    “Can you point to any other place in the code or any other time in history where that phrase...regulate importation...has been used to confer tariff imposing authority?”

  • Busch, on Barrett’s skepticism (C, 30:10):
    “She wanted logic. She wanted definitions. And my sense is she’s at least skeptical, if not opposed to this deployment of IEEPA...”

6. The Perpetual Emergency: Is the Tariff “Emergency” Real?

• The Court notes the “emergency” claim is thin, and Congressional mechanisms for terminating an emergency are nearly unworkable (needing a two-thirds vote).
• Trump’s invocation of “goods trade deficit” is a permanent feature—not an actual emergency.
  • Kagan (I, 39:13):
    “...we're in emergencies, everything, all the time, about like half the world.”
  • Busch (C, 39:46):
    “A goods trade deficit is not an emergency. And if we were to define it as such, then we will be in an emergency for forever.”

7. Political & Institutional Context

• Discussion on whether recent election results and political climate influence the Justices’ posture. Consensus: the scope of the abuse (and its legislative consequences) are the real driver.

  (C, 54:01):
  “...this was, in my view, the justices reeling at times from the lack of logic and from the fact that the data don't seem to bear out a lot of the underlying emergency or the preoccupation with trade deficits...This puts Smoot Hawley to bed. This is qualitatively different than anything we have or could have imagined from Tariffman [Trump].”

8. Possible Outcomes and Implications

• If the Court strikes down Trump’s use of IEEPA for tariffs, he does have other (more limited) statutory tools; the real issue is the scope and rationale.
• Potential for a Supreme Court “off ramp” that restores congressional control and prevents endless tariff wars.

  • Busch (C, 59:59):
    “The off ramp would be the courts say, you know, the IEEPA doesn’t support the tariffs, you've got other tools. And we leave it to Congress to unscramble the egg...”

  • Tariffs remain broadly unpopular with voters and economists alike, and even big business (usually Trump-aligned) has opposed them via amicus briefs.

Notable Quotes & Memorable Moments

• “Tariffs are taxes.” – Neil Katyal, opening the challenge (paraphrased by Busch, 06:50)
• Roberts (15:00): “...the vehicle is imposition of taxes on Americans. That has always been the core power of Congress...”
• Busch (16:13): “They're a tax, there's no mystery...the pass through rate is about 80% to Americans...”
• Busch (21:44): “Trump overplayed his hand. These were big tariffs and they made a big impact. And because of their bigness, he denied the Supreme Court the opportunity to come up with a narrow ruling.”
• Busch (C, 34:17): “...AIPA was written to rein in the President...Congress wanted to rein in these non war emergency powers, wanted some guardrails with respect to what the President thought he could do.”
• Kagan (39:13): “...we're in emergencies, everything, all the time, about like half the world.”
• Busch (54:01): “...this was...the justices reeling at times from the lack of logic and from the fact that the data don't seem to bear out a lot of the underlying emergency or the preoccupation with trade deficits...This puts Smoot Hawley to bed.”

Important Timestamps

00:17-02:25 — Episode setup, legal landscape, statutes in play
05:47-11:35 — Oral argument themes: taxes vs. tariffs, statutory language, economics
15:00-15:51 — Chief Justice Roberts presses on power of taxation
20:10-21:30 — Major questions doctrine confrontation
28:57-30:10 — Justice Barrett drills down on statutory language
34:17-39:46 — Separation of powers, the wide-open abuse of "emergency," historic intent
39:13-39:46 — Justice Kagan on the endless "emergency"
54:01-58:47 — Political context, why this issue forced the Court’s hand
59:59-end — Policy consequences, political ramifications, possible outcomes

Overall Tone & Takeaways

The podcast’s tone is sharp, deeply informed, and at times exasperated at both the legal and economic illiteracy apparent in the government’s case. The hosts and guest hint at a sense of judicial “gear change”—with the Court less credulous, more grounded in reality, and perhaps overdue in reasserting the primacy of congressional power over broad executive claims.

The episode’s core message: The legal, political, and economic issues posed by the “Liberation Day” tariffs are so fundamental and far-reaching that even the Supreme Court—often deferential on matters of executive foreign policy—is compelled to scrutinize, rebuke, and possibly roll back the President’s claimed powers under IEEPA. The future of emergency powers and real congressional checks on taxation hang in the balance.

Summary Table

| Segment | Theme | Key Moments / Quotes | |---|---|---| | 00:17–02:25 | Statutory landscape | “IEEPA is… the follow through to the turmoil that was created when Nixon began to go off gold…” | | 05:47–11:35 | Taxes vs. tariffs debate, economic reality | “...an absurd argument about regulatory tariffs versus revenue raising tariffs.” | | 15:00 | Who pays tariffs? | “The vehicle is imposition of taxes on Americans…” — Chief Justice Roberts | | 20:10–21:30 | Major questions doctrine | “You have a claim sourced in IEEPA…power to impose tariffs…That seems like... authority... maybe... a misfit.” — Roberts | | 28:57–30:10 | Statutory language | “Can you point to any other place in the code or any other time in history where ... regulate importation ... has been used to confer tariff imposing authority?” — Barrett | | 34:17–39:46 | Congressional/executive power, historical guardrails | “...once you give over this power, how do you ever claw it back?...” — Lithwick; “AIPA was written to rein in the President...” — Busch | | 39:13–39:46 | The perpetual emergency | “...we're in emergencies, everything, all the time...”—Kagan | | 54:01 | Impact of politics | “...the justices reeling at times from the lack of logic... This puts Smoot Hawley to bed...” — Busch |

Conclusion

At stake in this SCOTUS showdown is the fundamental American principle of who controls taxation and economic emergency powers. The Supreme Court’s apparent skepticism is fueled not by politics, but by the sheer audacity and breadth of the Trump administration’s tariff claims, and a realization that the IEEPA, intended as a curb, has been twisted into a blank check. The episode distills a swirling set of legal, economic, and political anxieties into one through line: no one—economists, legal scholars, the business lobby, voters, or even, it appears, most Justices—wants or believes in this seismic expansion of presidential tariff authority.