
Wednesday's Supreme Court "showdown" over President Donald Trump's tarriffs is putting America's highest court in a major bind, Politico reports.
Trump is asking the justices to overturn lower-court decisions that declared many of his tariffs "an illegal overreach" as they found that a 1977 law, the International Emergency Economic Powers Act, did not authorize the president to impose such broad tariffs.
“Nowhere does it say tariffs, taxes, duties,” noted Elizabeth Goitein, who studies emergency powers at New York University’s Brennan Center.
This showdown, Politico says, is an "epic clash between two of the most deeply ingrained tenets of the conservative legal movement."
One of those tenets, Politico explains, "is that presidents need and are entitled to extreme deference on matters of national security and foreign policy," suggesting that "the six conservative justices may be willing to uphold Trump’s unprecedented move to bypass Congress and unilaterally impose sweeping global tariffs."
Chief Justice Roberts, however, has made a name for himself opposing "government meddling in the free market," they explain, which "could prompt the court’s conservatives to view Trump’s tariffs more skeptically than they view many of his other, non-economic policies."
Jonathan Adler, a professor at William and Mary Law School, says that the justices are going to be conflicted.
“I think that some of the justices that matter are going to feel a bit torn,” he said. “What’s interesting here is that this case requires some of the conservative justices to confront a conflict between different strands of their own jurisprudence.”
The court, Politico explains, must differentiate between whether the tariffs are just part of the president's economic policy or a "core part" of his management of national security and international relations.
“How this case comes out will depend in large part on what the frame or the lens on it is,” said Vikram Amar, a law professor at the University of California at Davis. “Is this a case about unbridled, unauthorized — at least not explicitly authorized — broad executive authority, or is this a case about presidential ability to discharge foreign affairs and national security responsibilities?”
These questions, Politico says, is "most acute" for Justice Brett Kavanaugh, who is "the high court’s most outspoken voice for the president’s need for flexibility and dexterity in response to international challenges. But he is also highly skeptical of government power in the economic realm."
"If an agency wants to exercise expansive regulatory authority over some major social or economic activity … an ambiguous grant of statutory authority is not enough,” Kavanaugh wrote in a nod to his "fealty" to the conservative theory known as the “major questions doctrine."
That doctrine says that "courts should block executive branch actions of widespread impact when their legal basis is ambiguous," Politico explains.
“Congress must clearly authorize an agency to take such a major regulatory action," Kavanaugh added.
Experts see Kavanaugh "likely to lean towards blessing the tariffs," Politico says, while "Justices Clarence Thomas, Samuel Alito and Neil Gorsuch are thought by court watchers to be even more likely to uphold the tariffs."
Roberts and Justice Amy Coney Barrett are the ones to watch, they say.
“The center of the court is going to be especially interesting to watch,” Roman Martinez, a former law clerk to Kavanaugh and Roberts, said about them during a discussion at Georgetown Law.
“I think this case will probably split the conservatives,” said Cary Coglianese, a University of Pennsylvania law school professor who specializes in administrative law and regulatory processes.
Whatever they rule, Politico writes, the conservative justices will likely emerge unscathed.
"While a ruling against the tariffs would surely infuriate Trump, it wouldn’t do much if anything to hurt the conservative justices’ standing in their legal, political and social circles," they note.
Goitein disagrees, saying, "This will be a true test of the Supreme Court in many, many ways."

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