09/04/2025 POLITICO
The legal arguments for Trump’s tariffs are weak, so he’s arguing that their rejection would bring ruin.
Donald Trump is making a last-ditch effort to salvage his beloved, beleaguered tariff policy, heading to the Supreme Court in hopes that the Republican appointees will come to his rescue. The desperation is both palpable and warranted given the conspicuous weakness of the administration’s legal arguments, as underscored by a series of lower court rulings against him. That has in turn led the president and his aides to make increasingly histrionic public claims about what will happen if the Supreme Court does not cave and side with Trump.
Call it The Chicken Little Defense: If the courts do not sign off on the administration’s tariffs, it “would be a total disaster for the Country” and “would literally destroy the United States of America,” Trump said on Friday after the U.S. Court of Appeals for the Federal Circuit ruled that the bulk of the president’s tariffs are illegal. He doubled down on those claims on Tuesday while tacking on the transparently ridiculous assertion that the U.S. is “taking in $17 trillion … because of tariffs.”
In the petition to the Supreme Court filed on Wednesday night, the administration continued in this vein, saying that “the tariffs are promoting peace and unprecedented economic prosperity” and “pulling America back from the precipice of disaster, restoring its respect and standing in the world.”
This should all be seen for what it is — a tacit admission that the administration is on very weak footing as a legal matter. The most charitable interpretation of the effort is that the administration is lobbying the Supreme Court to engage in the sort of outcome-driven judicial activism that conservatives have long claimed to hate. A less generous read of the situation is that this is an effort to politically blackmail the court into giving Trump what he wants even if it is clearly unlawful or unconstitutional.
The administration has been pursuing this strategy in the lower courts for months, and it has so far flopped. Some of the administration’s most senior officials, as well as the Justice Department itself, have undermined their own credibility in the process.
In May, shortly before a three-judge panel on the U.S. Court of International Trade unanimously ruled that Trump’s tariffs under the International Emergency Economic Powers Act were illegal, top administration officials piled in at the last minute to try to stave off that ruling.
Secretary of State Marco Rubio insisted in a court filing that a ruling against the administration would cause “significant and irreparable harm to U.S. foreign policy and national security” and would embolden “allies and adversaries alike.” U.S. Trade Representative Jamieson Greer claimed that an adverse ruling “would create a foreign policy disaster scenario” while Treasury Secretary Scott Bessent argued that it would dramatically impact Trump’s “ability to protect the national security and economy of the United States.”
The court ignored all of this fearmongering, but that did not stop the administration while the case was on appeal to the Federal Circuit. Trump claimed last month that a loss would yield “a GREAT DEPRESSION.” Solicitor General John Sauer and Brett Shumate, who heads the Justice Department’s Civil Division, told the court that “the United States was a dead country” before Trump took office and that “the economic consequences” of a loss “would be ruinous, instead of unprecedented success.” Last Friday, Rubio upped the ante by claiming that an adverse ruling would make it harder for the administration to end the war in Ukraine.
These over-the-top claims make some sense if you have been following the administration’s floundering in the courts. The administration’s IEEPA tariffs have been on weak legal footing from the start, and the government’s arguments have not gotten any better over time. What’s less clear is whether this Supreme Court, which has shown Trump stunning deference again and again, will care.
The legal argument against the IEEPA tariffs is rooted in basic constitutional principles concerning the separation of powers between Congress and the president.
In particular, the Constitution gives Congress the authority to tax and impose tariffs. Over the years, Congress has delegated that authority to the executive branch in a handful of trade laws with a variety of procedural and substantive constraints designed to limit that authority.
By contrast, IEEPA — a statute that is generally used to impose economic sanctions — does not even contain the word “tariffs,” and before Trump, no president had attempted to use IEEPA to impose tariffs in the nearly 50 years since the statute has been on the books. In fact, Congress passed IEEPA to limit the president’s emergency economic powers — not to give him the ability to impose a massive tax increase on Americans without congressional approval, or to disrupt the global financial system whenever he wants and for whatever reason he wants.
For liberal jurists, this alone should suffice to reject the president’s position, but the Trump administration’s proposed interpretation of IEEPA also runs afoul of the “major questions doctrine” developed in recent years by the Republican appointees on the Supreme Court. Under that doctrine, when an executive action crosses some undefined threshold of “economic and political significance,” there must be a clear delegation of authority from Congress. If that does not exist, then the action is unlawful.
Conservatives cheered this theory on when the conservative majority on the Supreme Court used it to toss out the bulk of Joe Biden’s student-loan forgiveness plan, but the proposed economic impact of that initiative pales in comparison to Trump’s tariff policy. A model from Yale University currently estimates that Trump’s tariffs will increase inflation and cost the average American household $2,400 this year alone; that the tariffs will result in half-a-million lost jobs by the end of the year; and that they will shrink the American economy by about $125 billion a year. The model estimates that the government would raise $2.7 trillion in revenue through the tariffs, which amount to a large and regressive tax on the American people.
In the face of all this, the Trump administration’s legal defense boils down to the claim that IEEPA gives the president the statutory power to “regulate” imports, and that this effectively gives the president carte blanche to impose tariffs whenever he wants and for whatever reason he wants. This may sound persuasive if you know nothing else about the relevant legal framework, but as the Federal Circuit concluded last week, “the mere authorization to ‘regulate’ does not in and of itself imply the authority to impose tariffs.” Indeed, the Constitution itself distinguishes between the power to regulate and the power to tax.
Moreover, it is not the job of the Supreme Court to save the president, his Cabinet or his lawyers from their own mistakes or to prevent them from being embarrassed on the international stage. That can happen anytime the court rules against the sitting president in a major executive-power case, and that tension is an essential part of judicial review and the American constitutional system.
On the legal merits, all of this should be sufficient for the Republican appointees on the court to rule against Trump, but there is an added ancillary benefit for them: They could side with the American public at a time when their credibility is in the tank.
According to a Gallup poll released last month, the Supreme Court’s approval has hit yet another all-time low. This can likely be chalked up to the Republican appointees’ decision to overturn Roe v. Wade in 2022 and a series of major victories that they have handed Trump since he returned to office.
Meanwhile, the public is not enamored with the tariffs or with Trump at the moment. Polls have repeatedly shown that roughly 60 percent of the American public opposes the tariffs, and according to a poll aggregator from the New York Times, Trump’s approval rating is well underwater — with 43 percent of Americans approving and 52 percent of Americans disapproving of his performance.
These are all reasons to think that the Supreme Court’s Republican appointees might not uniformly line up behind Trump in this case. Still, we should remain cautious about predicting the result given their demonstrable willingness to abandon their stated principles and side with Trump when they want to.
Exhibit A is the Trump immunity ruling that the conservative justices handed down last summer, which paved the way for Trump’s reelection. The conservatives on the court claim to be textualists and originalists, but in that ruling, all six of them issued a decision with no basis in the text of the Constitution or the Framers’ expectations. The other way for conservative justices to contort themselves in Trump’s favor is to adopt the administration’s claim that IEEPA is an ambiguous and open-ended presidential foreign policy tool, despite the evidence to the contrary. The Supreme Court has a long tradition of deferring to presidents on foreign affairs and national security issues, and if the conservatives are intent on sticking with Trump, it’s an obvious path.
Ultimately there is no way to definitively predict how the conservatives will approach the tariff case. Only two of them need to join the three Democratic appointees to rule against Trump, but that was true in the immunity case too.
This legal war-gaming around the tariff litigation is important for the obvious substantive reasons, but it can obscure two critical facts.
The first is that the Trump tariff policy may turn out to have been a political, legal and diplomatic debacle of historic proportions. The Trump administration has spent the last six months frustrating and antagonizing our allies with an endlessly changing policy that has thoroughly disrupted the global economic system, while also proposing to unilaterally and dramatically raise taxes on the American public without the input of their elected representatives.
The fact that the administration persisted with its erratic tariff regime even after the ruling in May from the Court of International Trade should also have attracted far more attention and criticism. There was a stay on the ruling, but even so, Republicans would have been outraged if a Democratic president insisted on pushing aggressively forward with a policy that a credible court had said was unlawful.
For that reason, the Trump administration’s arguments about the impact of a loss on foreign relations are, in a way, almost precisely backwards. It may be true that a Supreme Court ruling against the administration would hurt its diplomatic standing, but that is because foreign governments may have been the victims of a global policy initiative that was illegal all along. If Trump officials end up being embarrassed, they will have earned it for themselves.
The second important fact to bear in mind is that if Trump is right — if his tariffs are necessary and wonderful and will stave off a Great Depression while also bringing an end to the Russia-Ukraine war — then he should go to Congress and get it to pass a law codifying them.
That would moot the whole legal challenge. The reason it will not happen, at least so far, is because the public is not buying the Trump administration’s claims, the tariffs are very unpopular and most GOP lawmakers have no interest in voting for them.
Republicans in Congress have already done plenty for Trump this year — mostly by sitting on the sidelines, letting Trump unilaterally eliminate whole swaths of the federal government and passing a domestic policy bill they don’t know how to sell. This is an administration that announced on its first day that it would ignore a law banning TikTok that Congress overwhelmingly passed and that the Supreme Court unanimously affirmed just weeks earlier. The question “Where’s Congress?” has become one of the defining questions of the second Trump term.
Republicans on Capitol Hill have let Trump have his way pretty much all year. The fact that they will not bail him out here is telling.
Will the Republican appointees on the Supreme Court do it instead? We are about to find out.
Ankush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice. His column, Rules of Law, offers an unvarnished look at national legal affairs and the political dimensions of the law at a moment when the two are inextricably linked.
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