One-Way Ratchet and a Different Kind of Pastry: Trump Tariffs at the Supreme Court
KEITH B. LETOURNEAU Partner
On November 5, 2025, the Supreme Court heard oral argument in the consolidated tariff cases. This article addresses a few notable points made during the argument and examines the underpinnings of each. On balance, it appears the Supreme Court will not uphold the reciprocal and fentanyl tariffs imposed by the president under the International Emergency Economic Powers Act(“ IEEPA”), though there are other more complicated means to a similar end. The Court’ s decision is expected early this year.
Justice Barrett inquired of Solicitor General Sauer(“ SG”) where there is any other place in the United States Code where the words“ regulate importation” confer tariff-imposing authority. The SG noted it exists in the Trading with the Enemy Act(“ TWEA”) as interpreted in Yoshida and IEEPA. In Yoshida, the Court of Customs and Patent Appeals held that President Nixon had the authority to impose a 10 percent import duty surcharge under TWEA’ s authority to“ regulate... importation.” Nevertheless, Yoshida made clear that each presidential proclamation must be evaluated on its own facts and circumstances. In that case, the measure issued under TWEA was temporary; it did not supplant the entire tariff scheme of Congress and did not apply to all imports, but only those imports already subject to tariffs. Yet, despite such limitations, the Yoshida court recognized that there was a broad grant of authority under TWEA, and said,“[ t ] hough such a broad grant may be considered unwise, or even dangerous, should it come into the hands of an unscrupulous, rampant president, willing to declare an emergency when none exists, the wisdom of a congressional delegation is not for us to decide.”
Justice Gorsuch characterized the IEEPA tariffs as a“ one-way ratchet,” meaning that, if the Supreme Court permits the president to impose unfettered tariffs by virtue of IEEPA’ s use of the words“ regulate importation,” the executive branch will effectively possess that power indefinitely. Justice Gorsuch noted that the only way Congress could take back that power would be by way of a supermajority of Congress overriding a presidential veto. Congress would have delegated its Article I taxing authority to the president, who does not possess it under Article II.
Justice Kagan noted that there is no language in IEEPA that authorizes“ raising revenue.” Further, Justice Kagan noted that“ when the Code uses‘ regulate,’ we don’ t typically understand it to refer to duties or taxes or tariffs or anything of the kind.” In response to a question by Justice Sotomayor, the SG agreed that the president does not have the constitutional authority to impose tariffs on“ exportations.” She then asked the SG that if the language is in the conjunctive, that is, IEEPA says“ regulate importations and exportations,”“ why are we permitting them to do it with respect to importations?” Relying on earlier cases Gibbons v. Ogden, McGoldrick, and Board of Trustees, the SG said,“[ w ] hen you’ re regulating imports, tariffing is a core application of that.” Gibbons delegated to the president foreign commerce power, which the SG argued subsumes the power to impose tariffs. McGoldrick v. Gulf Oil noted that“[ t ] he laying of a duty on imports, although an exercise of the taxing power, is also an exercise of the power to regulate foreign commerce,” though the Court addressed the issue in the context of the“ Congressional regulation of the commerce” and struck down a state tax that infringed on such regulation. Board of Trustees of University of Illinois v. United States stands for the proposition that Congress may impose duties in“ the exercise of the power to regulate commerce.” The case addressed the university’ s contention that it was immune from federal taxation on scientific equipment; the Court held that the university was not relieved of the obligation to pay duties on imported goods. In discussing these cases, Justice Barrett said:“ None of those cases talked about it as conferring tariff authority. I understood you to be citing McGoldrick and Gibbons and those cases just to show that it’ s possible to say that‘ regulating commerce’ includes the power to tariff.” The SG argued that“[ w ] hen you’ re regulating imports, tariffing is a core application of that” and that it“ would be kind of astonishing to say, hey, president, you can regulate imports, but... you do not have the power to tariff when the, the
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