이 에피소드에 관해
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
On Wednesday, the U.S. Supreme Court heard argument in two cases challenging tariffs imposed by Donald Trump: Trump v. V.O.S. Selections, out of the Federal Circuit, and Learning Resources, Inc. v. Trump, from the U.S. District Court for the District of Columbia. After losing in the lower courts, the Trump administration appealed to SCOTUS, hoping for a more favorable ruling from the justices.
If you have the time, you can listen to the oral arguments or read the transcript. You can also dive into copious coverage of the arguments, collected by Kelsey Dallas of SCOTUSblog and Howard Bashman of How Appealing.
But if you don’t have the time for all that—most of you have pretty demanding day jobs, after all—here are my takeaways. I listened to the arguments in order to participate in the SCOTUSblog liveblog and the post-argument episode of Advisory Opinions, which I encourage you to check out.
1. Overall, the justices appeared skeptical of the tariffs.
SCOTUSblog compiled articles from 11 outlets that covered the arguments. Of the 11, six used the word “skeptical” in their headlines to describe the justices’ attitudes toward the tariffs, and the remaining five arguably expressed similar sentiments. But I wouldn’t call it a blowout. I find it hard to imagine a 9-0 win for the challengers, which apparently some journalists think possible (as Amy Howe mentioned on C-SPAN, quoting fellow denizens of the press room at One First Street).
2. The challengers will probably prevail, 6-3—but a win by the administration, 5-4, can’t be ruled out.
What do I predict in terms of the breakdown? A poster on X uploaded the argument transcript to ChatGPT and asked it to rank the justices’ opposition to the tariffs. It came up with this ranking:
I generally share this assessment, but I’d switch Justices Gorsuch and Barrett, with Gorsuch as most likely to side with the liberals. Why do I view Justice Gorsuch as firmly in the anti-tariff camp? Check out the transcript and read pages 63-76, when Justice Gorsuch grilled U.S. Solicitor General John Sauer—in a way that I felt telegraphed the justice’s views of the merits.
After making that switch, I’d predict a 6-3 vote against the tariffs, with Justices Thomas, Alito, and Kavanaugh dissenting. But I agree with Roman Martinez and Sarah Isgur from Advisory Opinions: a government win remains possible. If the government prevails, I think the vote will be 5-4, with Chief Justice Roberts joined by Justices Thomas, Alito, Kavanaugh, and Barrett. The dissenters would then be three liberal justices and Justice Gorsuch.
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3. It’s possible we’ll get a “split decision.”
Most observers view the possible resolution of this case in binary terms: the plaintiffs will win, or the Trump administration will win. It’s possible, however, that we’ll end up with a mixed outcome, where each side walks away with something.
In my view, many or even most Supreme Court cases are decided based on the legal merits (with a soupçon of politics occasionally thrown in). But certain high-profile, high-stakes cases reflect what Professor Stephen Vladeck calls “constitutional politics.” As I’ve previously explained, constitutional politics includes doctrinal considerations of constitutional law but “reflects additional factors—like practical consequences, prudential judgments, the reputation and legitimacy of the Supreme Court, and what the justices are willing to spend in terms of political capital.”
(Yes, the main question in these cases could be viewed as one of statutory interpretation: ”whether the International Emergency Economic Powers Act (IEEPA) authorizes the president to impose tariffs.” But I see these cases as constitutional cases in many ways, focused on Congress’s authority under Article I of the Constitution versus the president’s authority under Article II.)
As a matter of constitutional politics, the tariffs litigation is… tricky. On the one hand, the justices don’t want to look like they’re giving away the store to Trump (which they’ve already been accused of doing). On the other hand, they might be reluctant to strike down a key policy initiative of the president, an issue that he raised repeatedly in the 2024 presidential campaign.
So the justices might be tempted to issue a compromise verdict of sorts, giving each side something that could be viewed as a win. For example, the justices might hold the tariffs unlawful but declare that there won’t be any refunds—i.e., the Trump administration gets to keep the billions in tariffs revenue it’s already collected. Or the justices might uphold the “trafficking tariffs”—imposed against goods from Canada, China, and Mexico, in response to a declared national emergency of opioid trafficking—but strike down the much broader “reciprocal tariffs,” issued against imports from nearly every country with which the U.S. engages in trade.
4. Problematic tensions exist within the government’s case.
The Trump administration’s defense of the tariffs suffers from at least two tensions (which is why I think it’s ultimately likely to lose). First, as Sarah Isgur noted on Advisory Opinions, the administration needs to argue that IEEPA represents a sweeping grant of power to the president—but the broader the grant of power, the harder it is to defend under the major-question and nondelegation doctrines.
Second, because IEEPA gives the president the explicit power to “regulate … importation,” but not the explicit power to impose tariffs, taxes, or duties, the administration must (and does) argue that the tariffs at issue here are “regulatory” rather than “revenue-raising” tariffs. But in its public messaging to the American people and even in its briefing to the Court, the administration touts the massive revenue these tariffs will generate—and the calamity that would ensue if the tariffs are held unlawful. From the introduction to the government brief (citations omitted):
To the President, these cases present a stark choice: With tariffs, we are a rich nation; without tariffs, we are a poor nation. The President has stated that “[o]ne 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.” ….
In short, President Trump and his advisors have determined that erroneously invalidating the IEEPA tariffs “would have catastrophic consequences for our national security, foreign policy, and economy.” The President observes that “[t]hese deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money”—which, he projects, could reach $15 trillion. The President has emphasized: “If the United States were forced to unwind these historic agreements… the economic consequences would be ruinous, instead of unprecedented success.”
It strikes me as a stretch to argue that tariffs capable of raising as much as $15 trillion in revenue are not “revenue-raising.”
So those are my thoughts. Readers, what do you think? Please take my poll:
And please share your own thoughts in the comments to this post—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!
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