The SCOTUS Tarriff Takedown – Top 3 Takeaways, November 6th, 2025
Takeaway #1: The imposition is taxes on Americans and that has always been a function of congress
On occasion I’ll say that I’ve not made a career out of being wrong. That’s not to say that I haven’t been wrong at any point over the past 27+ years, but that it’s been extremely rare, and I’m quick to admit if I have stated something that’s incorrect. After all, the premise of what I do is based on my saying that there are two sides to stories and one side to facts. When it comes to matters of constitutional law, the fun (from an attorney’s perspective) and the maddening aspects (for the rest of us), come down to matters of legal theory. If you happened to listen in on the Supreme Court’s hearing over President Trump’s use of executive authority to enact tariffs through emergency declarations yesterday, you’d have heard an awful lot of IEEPA, or the International Emergency Economic Powers ACT, enacted in 1977, which has been the Trump administration's basis for the unprecedented use of tariff authority this year. If you aren’t a policy wonk well versed on the IEEPA, you’d likely have been rather lost on the finer points in the back-and-forth arguments advanced for twos hour and forty four minutes as President Trump’s Solicitor General John Sauer tried to thread a legal needle in justifying the broad use of executive authority. Whether you’re a policy wonk and an IEEPA expert or not, you likely would have been able to pick up on what seemed to be going down. Namly, most of President Trump’s tariffs in the not-so-distant future. My top takeaway isn’t a quip that I came up with. It’s a direct quote from Chief Justice John Roberts in yesterday’s tariff hearing. And he said it in direct response to his line of questioning of Trump’s SG. That comment brought about a quick defense of the Trump policy by Sauer that tariffs weren’t actually a tax on Americans (stating tgat other entities often, foreign pay for them)...had the hearing on the brink of having a debate about what the definition of “tax” is. This btw, led to an eventual debate about “license fees”. But for practical purposes, that debate seemed to be effectively cut off at the pass when the discussion turned to the topic of tariffs having had the effect of being revenue raising. On that note...
Takeaway #2: There’s a lot of verbs but none of them involving raising revenue
In other words, when tariffs are used for purposes of revenue collection as opposed to serving emergency functions – you have a tax which is a function of congress. To date the Trump administration has collected $190 billion in tariff revenue and it’s even created the question as to what the president should do with the money. IE what’s been floated as a “Tariff Dividend” for Americans or some similar thing. That doesn’t help the administration's case. My second takeaway was a quote from Justice Sotomayor who rather artfully had the SG on defense and seemingly had the quintessential argument that would appear to have carried the hearing. This led to Trump’s SG coming up with the argument that the best outcome of the tariffs is that no one pays them because Americans would buy products manufactured in this country. But that would effectively mean that what, we’re never supposed to engage in trade with other countries (given that Trump has imposed a minimum 10% tariff on every country)? Plainly spoken as evidenced by that quote from Sotomayer – there's no language in IEEPA that explicitly allows for unilateral revenue raising measures by the president of the United States. And that point was driven home with this comment...
Takeaway #3: Could the president impose a 50% tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?
Which Supreme Court Justice do you think it was who asked that question? It was none other than Justice Gorsuch – who seems primed to author an opinion in this case. Trump’s SG, being behind the barrel, had to answer in the affirmative by saying that it was “very likely”. While also bringing about what turned out to be a laugh line about how the Trump administration wouldn’t do that because they think that’s a hoax...but the point was made by Gorsuch. Effectively if the Supreme Court lets the current broad authority of President Trump’s tariff’s stand, there would be effectively anything that a future president could deem to be an emergency – including his example of a climate emergency which many on the left would be quick to do – and then effectively impose any penalty they see fit to attempt to kill a particular industry in this country. It’s an illustration of the double edge sword and the point was illustrated extremely well. What I took away from the tariff hearing yesterday is two-fold. First, it’s not a question as to if President Trump will lose his tariff case. It appears likely that he will – the question is the margin of the split. I think a 6-3 ruling against the tariffs is very likely. The other question is the extent to which they rein the executive use of tariff policy. That part is less clear. Most of the questioning against the petitioners seemed to be hitting at trying to get to that answer. In other words, will the ruling strike down Trump’s tariffs in the way in which they’re currently issued, while leaving open the possibility that he could turn around and effectively reissue them under something termed as a “license fee” or something to that effect – which would bring about another round of legal challenges but that would also buy President Trump considerably more time with like policy in place. Or will the court rule broadly wording a decision in such a way as to effectively cut off any potential loopholes for any kind of similarly enacted policy through executive authority? That I think is less clear.