Justices Don't Buy Tariff Argument
Plus: Outrage at Heritage, air traffic might get throttled, and more...
Nobody likes it: Yesterday, the Supreme Court heard oral arguments in President Donald Trump's tariff case. Trump has invoked the International Emergency Economic Powers Act (IEEPA) as legal justification for his tariffs, imposed in some form on nearly all imports from nearly all countries.
The "emergency" that grants him such economic powers, in Trump's telling, is either the trafficking of fentanyl into the U.S. (in the case of the tariffs on Canada, Mexico, and China) or, more confusingly, the (rather normal) existence of trade deficits.
"Reasonable people might disagree with the notion that any of that should be considered an emergency," writes Reason's Eric Boehm. But legally, some of these things are "besides the point" as the real question is whether the executive "has broad authority under IEEPA to declare any 'emergency' that he sees fit" and "whether the law allows tariffs to be imposed once an emergency has been declared."
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The justices did not seem sympathetic to the arguments put forth by Trump's team.
"Could the president impose a 50 percent tariff on gas-powered cars and auto parts to deal with the 'unusual and extraordinary' threat…of climate change?" asked Justice Neil Gorsuch. "It's very likely that could be done," responded Solicitor General D. John Sauer, on behalf of the administration. "I think that has to be the logic of your view," responded Gorsuch. (More from Boehm here.)
Sauer is really leaning in on the "tariffs are regulatory, not revenue" argument.
Again, this is a disastrous strategy. That doctrine is long settled & it says, quite clearly, that tariffs are taxes.
— Phil Magness (@PhilWMagness) November 5, 2025
Much of yesterday's interrogation centered around whether the IEEPA grants the president the power to "regulate," "block," "nullify," "restrict," "modify," but not the power to impose taxes—which is what tariffs are. The word tariff is nowhere in the act. Sauer argued that the executive has the power to "regulate" per the IEEPA, and that "tariffing is the quintessential way of regulating importation." But justices did not seem compelled by this. At one point, Chief Justice John Roberts told Sauer that tariffs are "the imposition of taxes on Americans, and that has always been the core power of Congress."
It's a good thing they didn't buy the administration's argument. "This gets to the core of the tariff case, which goes beyond a normal dispute over policy and asks a serious question about the separation of powers in the constitutional system," writes Boehm. "If the chief executive can read new meanings into the words that Congress has written in the laws it passed, then there are effectively no limitations on what the president can do."
Some of the justices made this explicit. Gorsuch, who was especially pointed yesterday, offered that accepting the administration's logic and the powers they've assumed would result in "a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives."
"Congress, as a practical matter, can't get this power back once it's handed it over to the president," he correctly noted.
Gorsuch: Could IEEPA be used by a future president to declare a climate change emergency.
Sauer: Yes, it's very likely that could be done.
— Phil Magness (@PhilWMagness) November 5, 2025
Scenes from New York: Exit poll takeaways:
In New York, the non-degreed tried valiantly to save the city from the degree-holding horde. There just weren't enough of them. From exit polls: pic.twitter.com/tdF3zfVZ5V
— Byron York (@ByronYork) November 5, 2025
I'm sorry, but this is fucking ridiculous pic.twitter.com/IDZJn5kDm0
— Liz Wolfe (@LizWolfeReason) November 5, 2025
(Not an amazing chart, but sourced from this exit polling.)
QUICK HITS
- "The Trump administration announced on Wednesday that it would cut 10 percent of air traffic at 40 of the nation's busiest airports, in a move that analysts said would force airlines to cancel thousands of flights while the administration tries to push Democrats to end the government shutdown," reports The New York Times. Transportation Secretary Sean Duffy says that air traffic controllers have not received paychecks since mid-October. A source inside the Federal Aviation Administration tells CNN that New York City's three airports, plus those around D.C., plus Chicago, Atlanta, Dallas, Phoenix, and Seattle will be impacted, but the full list has not yet been released.
- "The Heritage Foundation is erupting in open revolt against its president, Kevin Roberts, as the right-wing think tank struggles to deal with internal and external anger over his defense of former Fox News host Tucker Carlson," reports The Washington Post. "The furor began after Carlson invited Nick Fuentes, a white nationalist who routinely espouses antisemitic views, onto his popular podcast. Roberts then posted a video that castigated a 'venomous coalition' and 'the globalist class' for attacking Carlson, whom Roberts called 'a close friend of the Heritage Foundation.' Numerous Heritage staffers and conservative figures said the comments played on antisemitic tropes." Now, Roberts has released multiple apologies—which have only quelled some of the concerns of his staff and donors—and held a staff meeting that seemed to result in little resolution.
- Fascinating definition:
The BBC defines "democratic socialism". pic.twitter.com/Sxk52XB68Y
— Sam Bowman (@s8mb) November 5, 2025
