Treating the justices of the U.S. Supreme Court as less than competent is usually a mistake. Recently, U.S. Attorney General D. John Sauer found himself defending President Trump’s tariff policies, which turned out to be quite the challenge.
Lawyers often find themselves in positions where they must defend questionable stances. Those who decline might find themselves resigning or losing their jobs. In this case, some federal prosecutors felt they lacked sufficient evidence to pursue cases against certain Trump adversaries.
Sauer did his best to present President Trump’s tariffs in a favorable light, yet the underlying issues remained troubling.
One of the more ludicrous points in Sauer’s argument to the Supreme Court was his assertion that the revenue generated from Trump’s tariffs is “incidental.” He contended that Trump was merely exercising his constitutional right to manage foreign policy, rather than aiming to boost federal income. According to Sauer, “These are regulatory tariffs, not revenue-raising tariffs. The fact that they raise revenue is only incidental.”
The issue with Sauer’s claim lies in the fact that the President and his team have consistently highlighted the increase in federal income as a reason for implementing tariffs.
Take, for instance, Trump’s inaugural address. He stated, “To protect American workers and families, I will immediately begin a complete overhaul of our trading system. Instead of taxing our people to enrich other countries, we will impose tariffs and tax foreign countries to enrich our own people.”
Doesn’t that sound more like revenue generation was a key part of Trump’s plan?
He further articulated, “To this end, we are creating the Foreign Revenue Service to collect all duties and revenues. There will be a huge amount of money coming into the Treasury from foreign sources.”
In reality, it’s American companies and individuals who bear the burden of these duties—not foreign entities. Essentially, Trump is increasing taxes on the American populace.
No reasonable person would honestly claim that federal revenue from tariffs is merely a secondary effect. The justices know this, Trump knows this, and even Sauer likely understands it, despite his arguments to the contrary.
This begs the question: why did the U.S. Attorney General present such a misleading argument to the Supreme Court? Is it an attempt to sidestep the clear language of the U.S. Constitution?
Article 1 of the Constitution grants Congress the power to tax—essentially, tariffs fall under this category as well. The founders intentionally designed it this way so that taxation decisions would be made by elected representatives rather than a single individual.
For years, Congress has provided the President the authority to impose customs duties, but only under certain circumstances, particularly in contexts of declared national emergencies. Most presidents have adhered to these boundaries, as evidenced by President Reagan’s actions in 1987. Yet, Trump appears to diverge from this norm.
The justices seemed to be aware of the deception at play, yet some were uncertain about how to reconcile the president’s role in foreign policy with the use of tariffs as a tool.
What might come of this? Given their skepticism, it’s quite possible that the justices will deem many of Trump’s tariffs unconstitutional. They might opt for a narrow interpretation and assess the legislative basis Trump claims gives him the authority to impose broad tariffs at will—namely, the International Emergency Economic Powers Act of 1977—concluding that it doesn’t provide such power, thus rendering those tariffs unconstitutional.
Still, it’s expected that some tariffs imposed by Trump could be upheld under current law, particularly those enacted under the Trade Expansion Act of 1962.
Interestingly, if Team Trump loses in court, they might pivot to assert authority under a different law, reviving the entire judicial discussion. This reflects how a president might sidestep the Supreme Court to pursue personal agendas.
You might recall that President Biden faced a similar situation when the Supreme Court ruled against his authority to forgive student loans. He then employed an alternative strategy known as “Plan B,” which garnered Republican criticism. It remains to be seen if they’ll respond the same way to Trump.
After potentially rolling back Trump’s tariffs, the Supreme Court could deliver a comprehensive ruling clarifying the extent of presidential powers regarding tariff imposition. That could be the most effective approach to resolve ongoing issues, stabilize economic and trade policies, and ensure taxpayers aren’t burdened with additional tariffs.
