Supreme Court Rebukes Trump at Biggest Hearing Yet

Summary

Legal AF by MeidasTouch

Episode: Supreme Court Rebukes Trump at Biggest Hearing Yet
Date: November 5, 2025
Host: Michael Popok (with references to co-hosts Ben Meiselas and Karen Friedman Agnifilo)

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Episode Overview

This episode of Legal AF dives into the Supreme Court oral arguments regarding the legality of former President Donald Trump’s expansive tariff regime under the International Emergency Economic Powers Act (IEEPA). Michael Popok analyzes the hearing in real time, highlighting the justices' skepticism—including some from typically conservative voices—regarding the unprecedented scope of presidential power claimed by Trump. The central focus is the constitutional battle over delegation of congressional tariff authority to the president, in light of doctrines like the "major questions" and "nondelegation" doctrines.

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Key Discussion Points & Insights

1. The Stakes and Central Legal Questions

• Tariff Authority at Issue: The Court hears a challenge to Trump's use of IEEPA to impose sweeping tariffs on 138 countries, raising trillions in revenue.
• Key Doctrinal Questions:
  • Major Questions Doctrine: Does Congress have to be clear and explicit when delegating power on significant economic issues to the President?
  • Nondelegation Doctrine: Are there certain powers (like tariffs/taxes) the Constitution says Congress cannot delegate at all?
• Constitutional Context:
  • Tension between Article 2 (President’s foreign affairs power) and Article 1 (Congress’s explicit control of tariffs and taxes).

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2. Supreme Court Oral Argument Dynamics

• Unusual Skepticism from the Right: Even conservative justices like Gorsuch and Barrett signal worry about creating an unchecked one-way ratchet for presidential power.
• Critical Language in the Statute:
  • The IEEPA doesn’t say “tariff”; it speaks of “licensing” and “regulation.” Does “regulate” mean “impose tariffs”?
  • The government argues “regulate” includes tariffs; opposing states argue explicit tax language would be required.

Notable Exchange:

Justice Sotomayor:

“Could the answer be that in other places where Congress wants that particular form of regulation to be used, they say impose duties. They say you can tax, Mr. President. Here, they don’t say that.”
[05:16]

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3. Major Questions & Nondelegation Concerns

• Congressional Power Retrieval:

  • Justice Gorsuch: “Don’t we have a serious retrieval problem here? ... Once Congress delegates by a bare majority … Congress can’t take that back without a super majority. ... As a practical matter, in the real world, it can never get that power back.”
    [07:04, summarized]

• Checks and Balances Problem:
  Gorsuch, followed by Barrett, expresses fear that once Congress hands over such broad authority, there’s virtually no way to claw it back, especially if the President vetoes efforts to reverse course.

Memorable Quote — Barrett:

“If Congress said, whoa, we don’t like that, that gives a president too much authority under IEEPA, he’s going to have a very hard time pulling the tariff power out of IEEPA, correct?”
— Justice Amy Coney Barrett [09:03]

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4. The Justices’ Leanings and Political Dynamics

• Math to Five Votes: Popok assesses that Barrett leans toward joining Sotomayor and Kagan to strike down the tariffs, leaving the decision resting on Roberts and Gorsuch.
• Kavanaugh’s Position: Argues foreign affairs powers justify executive latitude, but faces strong pushback (especially from Sotomayor) that tariffs are fundamentally taxes, which only Congress can impose.
• Roberts’ Caution: Asked probing questions but signaled skepticism toward upholding Trump’s view. May be swayed either way.

Popok’s Assessment:

“Right now, I think it’s 5 to 4 to strike down the tariffs. Could be 5 to 4 to uphold the tariffs. ... I just don’t see a 6–3. I think it’s a five to four one way or the other. If Gorsuch and Roberts both go hard right, it’s 5–4 to uphold. If they split, it’s 5–4 the other way.”
— Michael Popok [17:05]

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5. Broader Implications

• Potential Worldwide Impact:
  Striking down the tariffs could dramatically alter global trade, as more than 90% of U.S. trade currently touches a Trump-imposed tariff.
• Possible Outcomes:
  Popok notes the Court could allow the government to keep already collected tariffs but ban further collections, minimizing economic turmoil.

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Notable Quotes & Moments (with Timestamps)

• On Major Questions Doctrine:

  “Congress doesn’t hide an elephant in a mouse hole. If they wanted to give this tremendous power to the President, they do it by way of express language. That’s the major questions doctrine.”
  — Michael Popok [05:40]

• On Nondelegation and Irretrievability:

  “Don’t we have a serious retrieval problem here? ... As a practical matter, in the real world, it can never get that power back?”
  — Justice Neil Gorsuch [07:06]

• On Statutory Language:

  “You read the statute, you read the statute, you read the statute. And again, there’s no language in the statute about this particular thing.”
  — Paraphrasing Amy Coney Barrett’s recent writing, by Michael Popok [02:57]

• On Tax vs. Tariff Authority:

  “Tariffs are taxes, as Sotomayor told the assembled group ... taxes have to go through a bill in the House ... and a majority in both and a signature by a president before you can start imposing taxes on people, not just one guy ...”
  — Michael Popok [10:25]

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Important Segments and Timestamps

• Discussion of constitutional doctrines & case overview: [00:00-04:45]
• Clips from oral argument on statutory interpretation and delegation: [04:45-06:22]
• Gorsuch and Barrett on the retractability of delegated power: [06:22-09:39]
• Predictions on Justices’ alignments & political implications: [14:15-16:55]
• Potential outcome and court’s decision timeline: [17:05-19:05]

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Tone and Analysis

The conversation is clear, urgent, and leans progressive but punctuated by deep legal insight and healthy skepticism toward all sides. Popok is especially critical of attempts to reinterpret statutes beyond their clear language and is blunt about the dangers of unchecked executive authority over congressional prerogatives.

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Conclusion

This episode captures a pivotal legal moment at the Supreme Court, with Michael Popok providing an incisive breakdown of constitutional doctrine and personalized commentary on the justices’ thinking. The fate of Trump’s tariffs—and, by extension, presidential power—hangs on how a handful of justices, notably Barrett, Roberts, and Gorsuch, interpret the outer bounds of congressional delegation.

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For more legal analysis and daily updates, listeners are directed to Legal AF’s Substack and YouTube channels.

Transcript

[A]

Looks like this tariff scheme of Donald Trump at the United States Supreme Court is going to come down to Neil Gorsuch and which side he lands on. We have the oral argument today went on for over two and a half hours. I'm Michael Popo, you're on the Midas Dutch Network and Legal AF and I'm back from absorbing that two and a half hours. I'll give you what I believe, my honest commentary about what happened today. Could this be a 5 to 4 decision with Amy Coney Barrett siding with the liberals and dragging across with their John Roberts? Or will Gorsuch side and make it more of a 6 to 3 majority? Or will Gorsuch, based on some questioning, decide that he's got to stay on the hard right, right wing and side with Alito, Thomas and Kavanaugh and form a majority opinion there? It should not have been that difficult. The key issues in the case are whether the major questions doctrine, I'm going to describe that to you, whether the non delegation doctrine, whether the textual language of the emergency statute Donald Trump used, whether that all leads inexorably to the conclusion that the tariffs have been improperly used by President Trump under the International Economic Emergency Powers act or not. That is the fundamental issue and we're here to discuss it on Legal AF and Midas touch on Michael Popak. Let's get to it and I'm going to play you some clips that that suggest to me that just by the skin of our nose, the skin of our teeth, they're going to strike down those tariffs. At least it's possible because there's a lot of skepticism being expressed during the oral argument, including from people who are usually reliably maga. The major issue here is whether either under Article 2 of the Constitution, the powers of the presidency to regulate in the areas of foreign policy, foreign affairs is running up against the Article 1 powers that have been given to Congress by our founding fathers and framers to be responsible for tariffs and excise taxes and, and taxes. And what is the nature of this tariff? Is it just a license or a regular, a tool of regulation as that term is used in the statute that Donald Trump relied on to impose universal tariffs on 138 countries on almost all goods for unlimited duration, which is an Article 1 power of Congress? Is that what a license is? Is that what regulating means, considering IIPA doesn't contain the word tariff? And under the major questions doctrine, which is an invention of the Roberts court, if Congress intends to delegate that type of power and can delegate that Power and give it to the executive branch and give them that authority. They have to do it expressly and clearly and not through interpretation of a statute. Or as Amy Coney Barrett said in her recent book, when you're, when you're doing statutory interpretation or construction, you read the statute, you read the statute, you read the statute. And again, there's no language in the statute about this particular thing. They, they talk about the word license. There's a word license in the regulation, import control, you know, in terms of that. But how do you stretch license into a tariff which is revenue generating? It is the linchpin of the entire economic model of Donald Trump to be able to collect trillions of dollars of revenue and replace the lost revenue and income taxes. And yet his Solicitor general, John Sauer, he of the voice that's almost impossible to listen to. He told the court that revenue is incidental. That's not really, really that. Donald Trump says it's life or death, the ability to life or death, that we're gonna go into the Great Depression if he, if he's not able to tariff his way to some sort of economic success in a way no president has ever done. And the last president to try to do it that way led us into the Great Depression. Let me play you a clip, tell you how to kind of lead us into here, of the problems that he faced. John Sauer, the Solicitor General, the number four, the Department of Justice, Donald Trump's former criminal appellate lawyer, but now our Solicitor General that he had. Let's start with a clip of him going back and forth a bit with Sotomayor, Justice Sotomayor and Katanji Brown Jackson, where he couldn't answer the question straight, obviously, because he can't believe in the, in the, in the logic of his own argument. Let's play the clip.

[B]

They say, well, you can post quotas. Well, quotas are essentially economically, you know, economically equivalent to tariffs. So the question is, why would you be able to quota under regulate, but not tariff under regulate when the tariffs are themselves regulatory? And let me turn back to the question. I was getting the response.

[C]

I was getting the answer. Could the answer be that in other places where Congress wants that particular form of regulation to be used, they say impose duties. They say you can tax Mr. President here. They don't say that.

[A]

Now, this whole thing has to do with the word regulate. And does the word regulate, does that subsume a power to tariff? I just had Ag Bonta for the Attorney General for California on last night on the intersection he's Going to be back on and having an interview with me later today because he was in the room in Washington listening to the oral argument as the Attorney General from California, as the Attorney General from Oregon argued on behalf of the, of the states. And he said Congress, he's right. Congress doesn't hide an elephant in a mouse hole. If they wanted to give this tremendous power to the President, they do it by way of express language. That's the major questions doctrine. And the other hang up is because the Supreme Court also uses something called the non delegation doctrine that there are just certain powers within the Constitution that you can't delegate to another branch. You have to keep it for yourself. Congress can't give away those things. In fact, there is a back and forth with Gorsuch that is very, very telling about the non delegation issue. Let's play it.

[B]

This is a situation where we're not going to see a delegation problem when there clearly would have been a delegation problem in the domestic context. In those cases I think are powerful here.

[D]

General, if I can cut through those words, I think you're saying that no, the President doesn't have inherent authority over tariffs in peacetime.

[B]

Absolutely. That is, I mean we do not assert that. We say that Congress can delegate that to him. And when Congress does so, as it does when it uses the parade phrase.

[D]

Regulate importation, I follow all of that. Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don't we have a serious retrieval problem here? Because once Congress delegates by a bare majority and the President signs it, and of course every President will sign a law that gives him more authority. Congress can't take that back without a super majority. And even, you know, even that it's going to be veto proof what President's ever going to give that power back. Pretty rare President. So how did, how should that inform our view of delegations and major questions?

[B]

I would look at the balance that Congress struck because what Congress did initially it had a two house legislative veto.

[D]

And we struck that down.

[B]

And then Congress went back to the statute and amended it. It took out the legislative veto and left in the joint resolution, but still left the President with all those spots.

[D]

That's what, that's what Congress. Yes, fair enough. As a practical matter, in the real world, it can never get that power back.

[B]

I Disagree. Because in January 2023, Congress voted to terminate one of the biggest IEBA emergencies ever, the COVID emergency. And the President went along with that. So what the statute reflects is there's going to be the ability for a sort of political consensus against a declared emergency.

[D]

What happens when the president simply vetoes legislation to try to take these powers back back?

[B]

Well, he has the authority to veto legislation to terminate a national emergency, for example. I mean he retains the powers in the background because I is still on the books. But if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that Congress.

[A]

Now what they're getting at there is what is what Gorsuch feared and and this is from Gorsuch now who said out loud what he sees is a is a one way ratchet of increasing accretion of presidential power that can't ever be ripped back by Congress. In fact, Amy Coney Barrett was very concerned about once this delegation, even if it were possible were given to a president, how would they ever get it back? As you heard Gorsuch say the same thing. And these are the MAGA conservatives on the Supreme Court play Amy Coney Barrett.

[E]

So if Congress wanted to reject the let's say that we adopt your interpretation of the statute. If Congress said whoa, we don't like that, that gives a president too much authority under ipa, he's going to have a very hard time pulling the tariff power out of ipa, Correct?

[B]

I don't know if it'd be a hard time. Certainly we'd have to have a which would be the true of any case where this court definitively interprets a statute.

[E]

Yes, I think that the definitively interpreting a statute that grants presidential power makes it particularly hard to get the President to not want to veto something which as justice is pointing at, Justice Gorsuch is pointing out.

[A]

Now I've had some conversations with people who are constitutional scholars and they believe that despite Gorsuch his comments, he's really ultimately going to side with the right right wing. Meaning what is Roberts going to do? I'll tell you what they should do under their own doctrines. Originalism, textualism. What did the founding Fathers believe? They didn't give the power to tariff to the President. Now Kavanaugh argued well, you know foreign affairs and Congress did give the President the power to do import controls and to embargo to stop imports. So why can't he tariff? Because tariffs are taxes, as Sotomayor told the assembled group and John Sauer, General Sauer and taxes have to go through a bill in the House and a reconciliation in the Senate and a signature and a majority in both and a signature by a president before you can start imposing taxes on people not just one guy who through tariffs has now imposed taxes on Americans. So you have. But you see, Kavanaugh is going to side with Alito and Thomas, who were relatively quiet. Roberts asked a few questions that indicated he didn't believe in Sauer's argument. Doesn't mean he's going to side with the, with the majority and strike down the tariffs. I think they're very concerned about the size of the tariffs and the amount of money that's been collected and what it could do to the American economy if they rule it a certain way. But, but the lawyer that represented the learning center, that was the plaintiff in the case gave them an easy out. He said, you can make it retroactive, you can make it prospective. No more collection of tariffs and let the US treasury keep the money that's already been collected in the hundreds of billions of dollars, but no more tariffs. But then the whole worldwide order is going to be recalibrated because over 90% of trade right now touches some sort of Trump tariff. There was an interesting back and forth with Gorsuch, though, which leads me to believe that his mind is not made up, although he may ultimately side with the, with the far right because I don't think it was a positive exchange for the government. Let's play the last Gorsuch clip.

[D]

General, just a few questions following up on the major questions, discussions you've had. You say that we shouldn't be so concerned in the area of foreign affairs because of the President's inherent powers. That's the gist of it, as I understand it. Why we should disregard both major questions and non delegation. So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit, delay and collect duties as he sees fit?

[B]

We, we don't, we don't assert that here. That would be a much harder case now in 1790.

[D]

Isn't that the logic of your, of your view, though?

[B]

I don't think so, because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about.

[D]

You're saying you shouldn't. Look, we shouldn't be concerned with. Yeah. I want to explain to me how you draw the line because you say we shouldn't be concerned because this is foreign affairs and the President has inherent authority and so delegation off the books, more or less. If that's true, what would, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?

[B]

We don't contend that he could do.

[D]

That if it did, why not?

[B]

Well, because we're dealing with a statute again, that has a whole.

[D]

I'm not asking about the statute, general. I'm not asking about the statute. I'm asking for your theory of the Constitution and why the major questions of non delegation, what bite it would have in that case.

[B]

I would say by then you had moved from the area where there's enormous deference to the President, actually both the political branches, where here there's inherent authority and pile on top of that there's a broad delegation.

[D]

You're saying there's inherent authority in foreign affairs, all foreign affairs. So regulate commerce duties and tariffs and war. It's inherent authority all the way down. You say fine, Congress decides tomorrow. Well, we're tired of this legislating business. We're just going to hand it all off to the President. What would stop Congress from doing that?

[B]

That would be different than a situation where there are meets and bounds, so to speak. It would be a wholesale.

[D]

You say we are not here to jud meets and bounds when the foreign affair. That's what I'm struggling with. You'd have to have some test and if it isn't the intelligible principle test or something more with more bite than that, you're saying it's something less. What is that less?

[B]

I think what the court has said in its opinions is just that it applies with much less force, more limited application in this context. So perhaps the right to approach it is a very, very deferential application of the intelligent intelligible principle test that, that sort of wholesale abdication.

[D]

Right. So now you're admitting that there is some non delegation principle at play here and therefore major questions as well.

[B]

Very limited, you know, very, very deferential. Limited is what. And again the, the phrase that Justice Jackson uses, it just does not apply.

[D]

At least I know, but that's where you started off and now you've retreated from that, as I understand it.

[B]

Well, I think we would as our frontline position, a certain stronger position. But if the court doesn't accept it, then if there is a highly.

[D]

Can you give me a reason to accept it though? That's what I'm struggling and waiting for. What's the reason to accept the, the notion that Congress can hand off the power to declare war to the president?

[B]

Well, we don't contend that again that.

[D]

Well, you do. You say it's unreviewable. There's no manageable standard, nothing to be done. And now you're. I think you tell Me, if I'm wrong, you backed off that position.

[A]

Now we got to do the math and we got to figure out how to count to five. How do you get the five votes of the nine in order to render a decision? I don't think some people have said it'll come out in weeks. I don't think it's coming out in weeks. I think it's coming out no earlier than a month. And it could be as late as next June for the decision to be made. Somewhere between now and June, they're going to make a decision. I don't think they're going to do. If they're going to do it, they're going to do it far enough away from the midterms. Right. So. So June would be, of course, far enough away from the midterms. They could do it now and give time to the Trump administration to go fix its problem of having lost its cherished tariffs. But if they were to apply all of their doctrines from originalism, what did the founding fathers believe? President doesn't have that power. Textual analysis, statutory construction, Tariff doesn't appear as a word in the statute. Then you go to major questions doctrine. This issue of 138 countries being hit with a tariff about a slow moving non emergency of a trade deficit, a trade imbalance, wouldn't that be something that Congress would have to have expressed directly to give the President that power? Not something we interpret from the word regulate or license? Yes. I mean, that's what the prior Supreme Courts have said, led by John Roberts. And then you have non delegation doctrine, which is there's just, there's just some things that you can't delegate one branch to another. And I think tariffs is one of them. Now we got to count to five. Amy Coney, Barrett, Sotomayor and Kagan, they're gonna, they're gonna vote to strike this down. Question is, are they gonna be in the dissent or are they gonna be in the majority? Right. Where do they get the other two votes from? Just by Amy Coney Barrett's questioning and her siding with Sotomayor a couple of times in the questioning and with Kagan, I think she's going to be over with them. That's four votes still one short. So is it five to four to uphold the tariffs or five to four to strike them down? Now we're down to Roberts, the Chief justice who didn't ask questions. You know, he indicated that major questions doctrine would be applicable, at least my view of it. And so you have, you have that and then you have the so I think Roberts is in play. And then you have Kavanaugh, sorry Gorsuch, who as you heard asked some pretty scathing questions. Could he flip after reading or being issued the decision to write? Could he flip over? He could. Right now I think it's 5 to 4 to strike down the tariffs. Could be 5 to 4 to uphold the tariffs. Could it be 6 3? It could. I just don't see it. I think it's a five to four one way or the other. If Gorsuch it's going to come down to Robertson, Gorsuch and where they side. If they both go hard right five to four if they split then five to four the other way. Based on my reading of it, the MAGA are going to need both Gorsuch and Roberts to form their five person block because I think Amy Cody Barrett, my view has flipped over to the other side. We'll continue to follow it. I'm glad you're here on Midas Touch network and on Legal af. Take a minute. Hit subscribe buttons in both places. The YouTube channel for legal AF the one from Midas Touch as well. And I thank you for being here. I'm Michael Popak.

[F]

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[A]

Me neither.

[F]

That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called wait for it Morning af. What else? All the other contributors from Legal A for there as well. We got some new reporting, we got interviews, we got ad free versions versions of the podcast and hot takes where Legal AF on substack come over now to free subscribe.

[G]

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