C (2:58)

So this case is about a congressional statute. The International Emergency Economic Powers Act. So this is not about the Constitution. It's about whether Congress has, under this law, authorized presidents to. To impose tariffs. And it's always been a stretch because this law doesn't include the word tariffs or a synonym like duties. Instead, it's kind of a word salad that includes a lot of words. And the administration is focused on two of those words, the regulation of importation. And even those words are separated by 16 other words. And Chief Justice Roberts, writing for six justices, says that just doesn't bear the weight that the administration wants to place on it, that Congress has the power to tax, and tariffs are, of course, an import tax. And Congress, if it wants to authorize, the President can. But it didn't here. And regulation is not the same as taxation. Chief Justice Roberts says so he thinks this is a fairly straightforward grammatical exercise

B (4:08)

that the Chief justice, you're saying, is basically doing a close reading of this statute and saying, if you look at the actual language in it, it does not authorize the President to wield this kind of power to impose these kinds of tariffs.

C (4:24)

That's right. And five justices agree with him.

B (4:27)

Right. And to that point, Adam, this was a 6, 3 decision. And what stood out to me as I was looking through the opinions on this was that the conservatives on the Court were split. Can you tell me about that? Because that seemed very important.

C (4:42)

Yes. So we're used to 63 decisions. Right, Natalie. But the usual 63 decision is the six Republican appointees versus the three Democratic appointees. Right here we have the Chief justice and two Trump appointees, Justices Gorsuch and Barrett joining the liberals. And then in dissent, Justices Thomas, Alito and Kavanaugh. This kind of mix and match in a truly consequential case. And this, to be clear, Natalie, this is a major, major statement on presidential power. And to see the right side of the Court disagree is quite unusual.

B (5:20)

Okay. I want to understand that the substance of the disagreement between the conservatives on this, because it might not surprise people that the liberals were not backing Trump's ability to use presidential power in this way. Help me understand how the conservatives disagreed.

C (5:40)

It's really a different conception of the separation of powers. The conservatives, led by the Chief justice who thought Congress did not authorize these tariffs, think Congress has the leading role in this area. Congress has the power to tax. And if Congress is going to tell the President he can do something, it has to say so clearly, not by inference, but in plain language. The other three conservatives in dissent were much more willing to infer from the structure of the Constitution and from the duties of the president to believe that the president has power in this area, even if this statute maybe is not as clear as it might be. And I think there's a passage in Justice Neil Gorsuch's concurring opinion that kind of crystallizes and explains the nature of the dispute. He says, yes, it can be tempting to bypass Congress when some pressing problem arises, but the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. Now, obviously, he's not mentioning President Trump, but the music of that really nice prose does hint at someone who is using tariffs impulsively.

B (7:17)

And what he's saying there, and I want you to just translate it for me to put a fine point on it, is the legislative process may be cumbersome, but it is valuable, and it should have been applied here.

C (7:34)

Right. There's a value to deliberation, there's a value to consensus, there's a value to buy in, and there's a value to letting people know what the rules are, rather than governing by impulse and whim.

B (7:51)

Okay, I want to turn to the practical implications of this decision. And I know we're just beginning to digest what all of this means, but I want to ask you, Adam, some of the questions that I think people are asking urgently at this moment. Chief among them, what happens to the tariffs now? Are they gone?

C (8:08)

So the tariffs that were imposed under this 1977 law are gone. That's not every tariff President Trump has imposed. It's tariffs that he justified by trying to address the drug trade and tariffs he tried to impose to address trade deficits. But tariffs under other laws remain in place. So this is not a complete answer. It's not up or down tariffs, yes or no, but it does take out, in the short term, at least a great bulk of his terrorist program.

B (8:41)

Okay, but, Adam, we also had Trump give this press conference just a little while ago, which was, even by his standards, quite strident. And in his comments, he said he was gonna double down, actually on these tariffs that had just been ruled illegal. He said he'd found an avenue to revive them using other authorities. So, first of all, what did you think of the press conference? And second, what. What do we know about his efforts to find a solution to the problem the court has presented him with.

D (9:10)

Well, thank you very much for being here. The.

C (9:14)

So it was an extraordinarily combative press conference.

D (9:17)

And I'm ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what you said.

C (9:24)

He was ashamed of the justices in the majority. He said they were unpatriotic and disloyal to the Constitution.

D (9:31)

And. And as Justice Kavanaugh, whose stock has gone so well, you have to see I'm so proud of him, wrote in

C (9:41)

his dissent, the president leaned on the dissent to say, as it did, the

D (9:47)

decision might not substantially constrain a president's ability to order tariffs going forward.

C (9:53)

While the tariffs before the Court were struck down, there are other avenues the president can pursue.

D (10:00)

A president can actually charge more tariffs

C (10:04)

than I, and he's not wrong. In the past, the Court did not touch a number of other statutes which gave him separate authority to impose yet

D (10:11)

different tariffs, therefore, effective immediately, all national security tariffs under section 232 and existing section 301 tariffs.

C (10:22)

And the president said he was going to invoke those authorities, and he said they're a little more cumbersome, but they're going to let him do what he wants to do, and he can get done a great deal of what the court took away from him on Friday.

D (10:37)

If you have a few questions, you can let us know.

B (10:41)

But just to end and just to make sense of that, what Trump is saying he's gonna do is basically revert to a plan B here, that the administration can go out, find other legal justifications to pursue similar tariffs. Is that right?

C (10:58)

Yeah. And there are statutes that use the word tariffs and say the president can impose tariffs in certain situations. You know, more narrow situations, typically more time limited situations. Typically. But Congress knows how to give the president tariffs authority. The majority said IPA. The 1977 law is not one of those situations.

B (11:23)

And is it fair to say, based on the way you're describing these other authorities, that they're more, perhaps limited in nature, that we'd be talking more about a scalpel approach than a blunt instrument?

C (11:34)

Yeah, that's well put.

B (11:36)

Okay. So either way, even if Trump does pursue this kind of other route to get tariffs back in place, the Supreme Court has found that the ones that he has been implementing are not legal. So I'm wondering what that means for all of the businesses and consumers who have been paying for the cost of these tariffs that have now been declared invalid. Can businesses get refunds? What are the options there?

C (12:06)

So that's an important question. The majority does not address it.

B (12:10)

Okay.

C (12:11)

In dissent, Justice Kavanaugh says, this has created a mess. It will require litigation. Some companies have already sued. Many companies will now sue. Justice Kavanaugh makes the interesting point that some of these businesses have paid the tariffs but have passed the cost along to consumers. So they might get a win win if they're reimbursed for the tariffs. It's an unwieldy situation. And the short answer, Natalie, is we don't know what happens to these suits claiming refunds.

B (12:45)

Okay, so it sounds like there is a lot to sort through over the coming days and weeks. I just want to step back, Adam, and ask what are we to make of this Supreme Court at this moment? I think a lot of people have this impression of the court as Trump's court. He appointed three of the justices on it. There is a six to three conservative majority. And as you mentioned at the start of our conversation, that majority has regularly ruled in ways that favor him. But now we have the court going against the president in a pretty major way on the pillar of his economic and in some ways his foreign policy. So how should we interpret that?

C (13:29)

So let me throw out two ideas. One, call me naive, maybe they're just trying to interpret the statute and get the law right. But two, engaging with the question a little bit more in earnest. This is a court that, starting with the 2024 decision granting President Trump broad immunity from a prosecution, charging him with an attempt to subvert the 2020 election, and followed by, well, maybe 20 emergency orders, green lighting aspects of his second administration agenda. We've sort of got the impression that the court is in the bag for Trump. But those emergency applications are temporary, provisional, and maybe are situations where some deference to the president is warranted. This tariffs decision is the first argued merits decision of the second Trump term involving a Trump program. And to see the court stand up 6, 3 go against the president, cast the court in a different light. And it may not be a one off. There's reason to think that another major Trump initiative, birthright citizenship, is going to face a skeptical court. There's reason to think that his attempt to remove a leader of the Federal Reserve Board is not going to succeed. We may be entering an era where the Supreme Court shows itself to be a counterweight to the ambitions of President Trump. And all of this is happening at an interesting moment because on Tuesday night, the president will give his State of the Union address. And it's going to be a very odd tableau if, as has been historically, the case, four or five justices turn up at the State of the Union address on Tuesday, sit very close to the president in their black robes and if this news conference is any guide, get lectured to by the president about how they have been disloyal and unpatriotic by ruling against him. And it may capture and illustrate a clash between two branches of the government in a way we've never seen before.

B (16:16)

Well, Adam, thanks so much for coming on the show.

C (16:20)

Thank you, Natalie.

B (16:24)

For more insights from Adam Liptak on the most urgent legal developments of the moment, sign up for his newsletter. The Docket Today's episode was produced by Rob Zipko and Carlos Prieto with help from Ricky Novetsky. It was edited by Devin Taylor, contains music by Dan Powell and was engineered by Dan Powell. That's it for the Daily I'm Natalie Kitroeff. See you on Sunday.