It was a big day at the United States Supreme Court. The high court held a joint hearing this Wednesday to study two cases around the same question of enormous importance for the global economy: does the president of the United States have the authority to impose tariffs based, as the current Donald Trump has done, (IEEPA is its acronym in English) and due to the need to reduce the deficit with dozens of trading partners and encourage manufacturing made in USA?
Although in the background there was another question of similar scope: would the nine justices be willing to agree with Trump once again in his crusade to expand
The answer to both questions will have to wait for the Supreme Court to issue a ruling, which is expected before the end of the year, and not, as is customary, at the conclusion of the judicial process, next June. That rush is because there are billions of dollars of tariffs at stake (according to the Treasury Department, they have been collected by the end of the fiscal year, September 30).
This Wednesday, therefore, was expected to give an impression of where the decision of the magistrates, six conservatives and three liberals, could go. Well, after a hearing of more than two hours, it seemed that the Supreme Court is inclined to deny Trump the power to impose the tariffs that he has imposed on more than a hundred countries, rates ranging from 10% in a majority of countries, to 50% in Brazil, as part of his aggressive trade war, and in sectors such as automobiles, steel, aluminum or copper.
If that ended up being the ruling, it would be a huge blow for the president of the United States, who considers that ruling as “one of the most important and transcendental opinions taken by the Supreme Court,” as he wrote last Sunday on his social network, Truth. The news that he has not won the case came on the same day that marked one year since his electoral victory after a campaign that was based largely on his passion for tariffs, and a few hours after receiving a political blow from voters in various parts of the country, who gave a series of resounding victories to the Democrats in appointments with the local and state polls.
The main argument of the plaintiffs, a toy company from Illinois and an alcohol importer from New York, who are litigating on behalf of other individuals joined by several Democratic states, is that the law used by Trump does not include the word “tariffs,” nor terms from that semantic field such as “rights.” They also maintain that the president’s decision to revive the IEEPA violates the American legal concept known as the “main issues doctrine,” which requires Congress to use clear and direct language to authorize the president to decree far-reaching economic measures.
“The law confers broad powers on the president, who is perhaps the main actor in foreign affairs in the United States. It is just a matter of common sense,” argued hastily John Sauer, attorney general, who defended Trump’s case and received again and again the dialectical attacks of the liberal judges and the impatient cuts of the conservatives, who did not seem too happy with his nervous argumentative style.
Among the justices of the conservative majority, Neil Gorsuch, who wondered whether Congress had not delegated too much power into Trump’s hands since his return to the White House 10 months ago, and Amy Coney Barrett, who sometimes acted as a hinge on a court that is changing the rules of American society at forced marches with often controversial decisions, were particularly skeptical. This cast doubt on Trump’s argument that trade imbalances with other countries can be considered “serious threats.”
Fees and taxes
Liberal Sonia Sotomayor disgraced Sauer, for her part, for trying to sell tariffs as something different from taxes. “And if they are taxes,” he said, “it is up to Congress to impose them, not the president.” Sauer dissented, arguing that what Trump is doing with import taxes is not taxing citizens, but rather regulating international trade.
Sotomayor also asked the attorney general to help her understand why the Supreme Court should now agree with Trump, when during Joe Biden’s presidency, the current composition of the court decided on several occasions that he did not have permission to
And given that Sauer turned again and again to history, Judge Ketanji Brown Jackson pointed out the paradox of IEEPA being a law signed by Jimmy Carter for the exact opposite of what it was conceived for: limiting presidential power in foreign economic matters. It emerged as a reaction to the attempts of Richard Nixon, a reference for Trump in his attempts to expand executive power.
Attorney Neal K. Katyal spoke on behalf of the plaintiffs after 75 minutes of relentless interrogation of Sauer. Katyal recalled that the power to impose taxes was given by the “Founding Fathers” to Congress, and that the IEEPA has been used “multiple times” in the last 50 years to “decree sanctions, but never, not once, to dictate tariff policy.” With that dialectical journey to the beginning of the American Republic, the lawyer seemed to court the most conservative judges of the Supreme Court, firm believers in the doctrine of originalism, a legal theory that advises a very faithful reading of the Constitution to decide on the issues of the present.
Katyal, who has argued more than 50 times before the Supreme Court, also wanted to distinguish between tariffs, which serve to raise money for the State, from embargoes or sanctions, which are used as an instrument in international politics.
