WASHINGTON — The Supreme Court justices sounded skeptical Wednesday of President Trump’s claim that he has the power to set large tariffs on products coming from countries around the world.
Most of the justices, both conservative and liberal, said Congress, not the president, had the power to impose taxes and tariffs. And they agreed Congress did not authorize tariffs in an emergency powers law adopted in 1977.
It has “never before been used to justify tariffs, and no one had argued it before this case,” Chief Justice John G. Roberts Jr. told Trump’s top courtroom attorney. “The imposition of taxes on Americans … has always been a core power of Congress.”
Solicitor Gen. D. John Sauer argued that tariffs involve the president’s power over foreign affairs. They are “regulatory tariffs, not taxes,” he said.
Justices Sonia Sotomayor and Elena Kagan disagreed.
Imposing a tariff “is a taxing power which is delegated by the Constitution to Congress,” Kagan said.
Justice Neil M. Gorsuch said he too was skeptical of the claim the president had the power to impose taxes based on his belief that the nation faces a global emergency.
If so, could a future president acting on his own impose a 50% tax on cars because of climate change? he asked.
Gorsuch said the court has recently blocked far-reaching presidential regulations by Democratic presidents that went beyond an old and vague law, and the same may be called for here.
Otherwise, presidents may feel free to take away the taxing power “from the people’s representatives,” he said.
But Justices Brett M. Kavanaugh and Samuel A. Alito Jr. questioned the challenge to the president’s tariffs.
Kavanaugh pointed to a round of tariffs imposed by President Nixon in 1971, and he said Congress later adopted its emergency powers act without clearly rejecting that authority.
Justice Amy Coney Barrett said she was struggling to understand what Congress meant in the emergency powers law when it said the president may “regulate” importation.
She agreed the law did not mention taxes and tariffs that would raise revenue, but some judges then saw it as allowing the authority to impose duties or tariffs.
The tariffs case heard Wednesday is the first major challenge to Trump’s presidential power to be heard by the court. It is also a test of whether the court’s conservative majority is willing to set legal limits on Trump’s executive authority.
Trump has touted these import taxes as crucial to reviving American manufacturing.
But owners of small businesses, farmers and economists are among the critics who say the on-again, off-again import taxes are disrupting business and damaging the economy.
Since Trump returned to the White House in January, the court’s six Republican appointees have voted repeatedly to set aside orders from judges who had temporarily blocked the president’s policies and initiatives.
While they have not explained most of their temporary emergency rulings, the conservatives have said the president has broad executive authority over federal agencies and on matters of foreign affairs.
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