President Donald Trump, who has declared it a matter of “LIFE OR DEATH,” opted against attending Wednesday’s Supreme Court hearing over his billion-dollar tariffs, but his lawyer presented the case in similarly audacious terms.
“President Trump determined that our exploding trade deficits had brought us to the brink of an economic and national security catastrophe,” US Solicitor General D. John Sauer said, layering his arguments with warnings about the “ruthless trade retaliation” and “ruinous economic and national security consequences” Americans would face if the court struck down Trump’s tariffs.
Sauer exhibited his usual rapid-paced, overconfident style at the courtroom lectern as he seemed to channel Trump. He faced considerable skepticism from justices for his assertion of unilateral tariff power, yet key justices also poked holes in the challengers’ arguments.
At the end of nearly three hours of intense argument – in which Sauer was twice encouraged to slow down – the case appeared close. Lower courts have ruled against Trump, and the momentum remains with the challengers: a New York-based wine importer, Illinois educational-toy maker and a group of states.
All three of the liberal justices (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) looked ready to strike down the sweeping tariffs, and three of the six conservatives voiced reservations.
Yet Sauer has previously pulled out surprising results, as in 2024 when, serving then as Trump’s personal lawyer, he won him substantial immunity from criminal prosecution.
Whatever the majority view when the justices left the elevated bench Wednesday, important negotiations and their own internal advocacy will now occur behind closed doors. If past practice holds, the nine justices will vote on Friday in a small room off the chambers of Chief Justice John Roberts and then begin drafting opinions, a process likely to take weeks.
Roberts, who is apt to want to write the opinion for the court in a case of this magnitude, sent conflicting signals. At the outset, he questioned Sauer’s interpretation of a 1981 case the administration has highlighted and likened the imposition of tariffs to the regulation of taxes, “core” powers of Congress under the Constitution.
But Roberts also undercut part of lawyer Neal Katyal’s arguments on behalf of the small businesses suing the administration for the tariffs that have brought the US Treasury an estimated $90 billion while upending global markets and, in the US, hiking costs for businesses and hurting consumers.
“The tariffs are a tax, and that’s a core power of Congress. But they’re a foreign-facing tax, right? And foreign affairs is a core power of the executive,” Roberts told Katyal. “And I don’t think you can dismiss the consequences.”
Roberts also observed that the tariffs, which the justices allowed to remain in effect as the litigation continued, have proved their usefulness to Trump in foreign affairs.
“One thing is quite clear, is that the foreign-facing tariffs … were quite effective in achieving a particular objective,” Roberts said. “I don’t think you can just separate it. When you say, ‘Well, this is a tax, Congress’ power,’ it implicates very directly the president’s foreign affairs power.”
Justice Amy Coney Barrett, another of the skeptical conservatives who could be a decisive vote against Trump, suggested at points that she was inclined to find the administration had exceeded its authority under the International Emergency Economic Powers Act.
IEEPA, as the 1977 law is known, has previously been used to impose economic penalties but has never been used for tariffs. By its text, the law authorizes the president to “regulate … importation” of goods to deal with a national emergency arising from an “unusual and extraordinary threat” to the national security, foreign policy or economy of the US.
“Can you point to any place in the code – or any other time in history – where that phrase, together ‘regulate importation’ has been used to confer tariff imposing authority?” Barrett asked Sauer.
He offered several examples, but Barrett sounded unconvinced; she remarked, “None of those cases talked about it as conferring tariff authority.”
Yet, like Roberts, she expressed doubts about some of Katyal’s claims. She homed in on the potential difficulty of unwinding the billions of dollars collected under potentially invalid tariffs.
“If you win, tell me how the reimbursement process would work. Would it be a complete mess?” Barrett said, adding, “It seems to me like it could be a mess.”
The president’s voice in the courtroom
At the lectern in the well of the courtroom, Sauer wears the traditional somber gray morning coat but cuts a pugnacious figure. He has a distinctive gravelly voice and a forceful style, gesturing with both hands, leaning in, his shoulders rising as he speaks. A former college wrestling champion (at Duke University), he also was a Rhodes scholar and attended Harvard law school before serving as a clerk to the late Justice Antonin Scalia.
In Sauer’s arguments, it is often difficult to draw a line between policy declarations and legal reasoning.
Before the dispute reached the justices, Sauer sent a letter to a US appeals court asking that the tariffs remain in place during the litigation, mimicking one of the president’s oft-used rhetorical phrases.
“One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again,” Sauer wrote.
A few weeks later, as he appealed the case to the Supreme Court, Sauer attributed that “dead country” declaration to Trump.
Sauer, who will turn 51 next week, has been in sync with Trump since he began defending him in late 2023 during Trump’s personal battle against charges brought by special counsel Jack Smith. Trump was accused of election fraud, conspiracy and other offenses in protest of the valid results that gave the 2020 presidential election to Joe Biden. Sauer persuaded the Supreme Court to give Trump substantial immunity, and the case never went to trial.
After Trump won reelection, one year ago Wednesday, he named Sauer to the prestigious post of US solicitor general, the federal government’s top lawyer before the Supreme Court.
Sauer has already argued at the high court on behalf of the administration, but Wednesday’s hearing over the centerpiece of Trump’s economic agenda marks the most important appearance to date of Trump’s second term.
In his written brief and as he began in person on Wednesday, Sauer leaned heavily on a 1981 case, Dames & Moore v. Regan, in which the justices upheld President Jimmy Carter’s reliance on IEEPA to use frozen Iranian assets as a “bargaining chip” to win the release of 52 American hostages.
“In Dames & Moore against Regan, this Court held that IEEPA’s sweeping and unqualified language grants the President’s actions the strongest presumption of validity and the widest latitude of judicial interpretation,” Sauer said.
That Dames & Moore decision was written by then-Justice William Rehnquist in a session when Roberts happened to be a law clerk to Rehnquist.
And the chief justice seemed eager to set Sauer straight on the limited reach of the case.
“Counsel, you – you’ve already mentioned Dames & Moore three times, which surprises me a little because the court in Dames & Moore went out of its way to say that it was issuing a very narrow decision it pretty much expected to apply only in this case,” Roberts said, going on to list a few choice phrases from the decision explaining exactly that.
“Maybe I can put it this way,” Sauer rejoined. “We don’t dispute that Dames & Moore is, as you state, a narrow opinion. However, it addressed certain principles that we think are equally applicable here.”
Among those principles, Sauer argued, is that the president’s IEEPA power is vast, and that actions in the realm of foreign affairs should be presumed valid.
What is a real crisis, anyway?
Justices on the left and right questioned the administration’s assertion of an emergency arising from an “unusual and extraordinary” threat, since trade deficits have existed for decades and no other president has sought to impose tariffs under the IEEPA.
Justice Neil Gorsuch, the third conservative who sounded dubious of Sauer’s positions, queried how far the Trump view of a threat could take the administration. And he did it with a hypothetical that, first, induced Sauer to try to find common ground with Gorsuch.
“Could the President impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?” asked Gorsuch, raising a scenario that could occur with an administration with progressive priorities.
Responded Sauer, “It’s very likely that that could be done, very likely.”
“I think that has to be the logic of your view,” Gorsuch said.
But then Sauer, hewing once more to Trump policy, interjected: “I mean, obviously, this administration would say that’s a hoax, not a real crisis.”
Gorsuch’s retort: “I’m sure you would.”
