When the Supreme Court Remembered Its Job

Inside the arguments that pushed the Court to confront the limits of executive authority.

Illustration: Daybreak. © Getty Images. Credit: Bloomberg.

November 5th wasn’t supposed to be a remarkable day at the Supreme Court. But the justices’ questions made it one. What began as a routine fight over trade law quickly turned into something else: a rare, cross-ideological pushback against presidential power.

The tariff cases before the Court—Trump v. V.O.S. Selections and Learning Resources v. Trump—arrived looking like technical disputes over the meaning of an old statute. They didn’t appear likely to scramble the Court’s usual ideological lines. But under the legal jargon lay an important question for the nation: can the president use a national-security law to claim a tariff power that Congress never explicitly delegated?

The administration said yes. The International Emergency Economic Powers Act, or IEEPA, it argued, lets presidents “regulate importation,” and tariffs were simply another way to do that.

However, the Court didn’t seem convinced. Not the liberal justices. Not the conservatives. And not even the justices appointed by the president whose policy was on the line. For a moment, there was doubt that the executive branch had the authority it claimed. 

The story of these tariffs didn’t begin in the courtroom. It began in January, almost the moment President Trump stepped back through the doors of the White House. Within weeks, he declared a national emergency and immediately announced tariffs on China, Canada, and Mexico, the start of a sweeping campaign to impose duties on nearly 30 percent of all U.S. imports. By April, the tariff list had grown to more than 100 countries. To justify this sweeping tariff campaign, Trump cited the IEEPA. The 1977 statute was enacted during the Cold War to help presidents restrict trade with hostile nations during emergencies by freezing assets, issuing embargoes, and cutting off transactions.

No president had ever used it to impose tariffs. Trump became the first.

His administration argued that the law’s authorization to “regulate the importation” of foreign property was enough to justify steep duties on dozens of countries and baseline tariffs on all of them. The administration insisted their actions were required to confront what they described as “unusual and extraordinary threats.” They cited everything from fentanyl trafficking to national-security risks in the industrial base.

Importantly, IEEPA never uses the words “tariff,” “tax,” “duty,” or “impost.” Every other law that lets a president impose duties does so explicitly, and with limits. This one doesn’t. “Tariffs are taxes,” Neal Katyal, an American lawyer for the small businesses challenging the tariffs, told the Court. And the Constitution puts the taxing power in Congress’s hands for a reason. The Federal Circuit agreed with Katyal. In August, by a 7-to-4 vote, it held that IEEPA did not authorize the “tariffs of the magnitude” Trump announced. If Congress wanted to hand the president the power to decide the country’s entire tariff system—to set and reset duties on any product, from any country, in any amount—it would have just said so.

As the courts scrutinized the limits of constitutional powers, billions flowed in under these emergency tariffs. By the fall, the Treasury had warned that a loss at the Supreme Court could force the government to return “tens of billions of dollars” in duties collected this year alone: a figure that could balloon to $1 trillion if the Court waited until summer to rule. All the while, importers reported widespread disruption—from refund liabilities to “innovation shocks” in tech sectors. The CTA and CoC warned that the policy could cost 141,000 jobs due to reduced exports and likely retaliation.

But at the Supreme Court, those downstream effects were background noise. The justices kept returning to a far more enduring question, one that hovered above the economic fallout: If tariffs function as taxes, who is constitutionally empowered to impose them? Congress? Or a president asserting emergency powers with no historical precedent?

That was the real fight on November 5th: not over trade policy, but over who gets to wield the power drafted in the Constitution.

It is this question that muddled the typical party lines, as both conservative and liberal justices questioned whether the IEEPA could sustain tariffs of the scope Trump had imposed. Their concerns clustered around three themes: the meaning of “regulate importation,” the constitutional status of tariffs as taxes, and whether the case triggered the major questions doctrine.

On the statutory question, Solicitor General D. John Sauer relied heavily on a simple premise: IEEPA’s instruction to “regulate importation” plainly embraces tariffs, which he called among “the most traditional and direct methods of regulating importation.” However, the bench was unconvinced. Chief Justice John Roberts pressed Sauer on why the major questions doctrine should not apply when the government was now claiming authority to impose tariffs on “any product from any country, in any amount, for any length of time”—all under a statute that had never been read that way.

On the Republican side, Justice Neil Gorsuch pushed the delegation issue even further by warning the tariff case may set a precedent as “a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.” Most directly, Gorsuch pressed Sauer with hypotheticals about Congress “abdicating all responsibility to regulate foreign commerce—or for that matter, declare war—to the president,” and forced him to retreat from his initial claim that such delegations would be effectively “unreviewable.” 

Gorsuch’s questioning of the long-term consequences of broad emergency delegations revealed a rare moment of bipartisan judicial skepticism. The conservatives on the Court did not rally around presidential power; the liberals did not need to stretch to find limits. Instead, across the bench, the justices kept circling back to the same concern: whether a broad reading of “regulate importation” would let the president do what only Congress is supposed to do: raise revenue from the American public through tariffs, without a clear grant of authority. 

Seen in that light, the skepticism on the bench wasn’t simply bipartisan. It was constitutional. The justices were probing a fear as old as the republic itself, one Madison captured plainly: government would not rely on virtue or goodwill, but on the predictable friction produced when each branch guarded its own authority. “Ambition must be made to counteract ambition” was less a hope than a structural expectation. But this ambition depended on a second assumption: that institutional ambition would be stronger than partisan ambition. However, in today’s political culture, that assumption no longer holds. Political scientists describe the transformation as a shift from the separation of powers to the separation of parties. Partisan incentives now run so deep that they often override constitutional duties. Congress routinely delegates broad authority to the executive when the president is politically aligned with the majority.

This is precisely why the tariff cases stand out.

On November 5th, the questions from the bench did not map onto familiar ideological cleavages. Instead, they reflected the justices’ recognition that allowing a president to infer sweeping tariff authority from a national-security statute would reshape the balance of power between Congress and the executive in unprecedented ways. Whether this marks a genuine rebalancing or merely an episodic return to constitutional first principles remains uncertain. But it revealed something rare in contemporary American governance: a branch openly defending the boundaries of its authority.

Moments like this can be easy to overanalyze. A single morning of sharp questioning does not undo decades of partisan drift. But in constitutional politics, the early signs of stress often matter as much as the fractures themselves.

Scholars disagree on when a constitutional crisis truly begins. Some look for overt confrontation, such as presidents actively defying an unambiguous court order or refusing to comply with congressional oversight. Others focus on quieter failures: a legislature too passive to protect its own authority or the erosion of norms of institutional forbearance that once restrained the use of lawful power. 

If those are the metrics, the tariff case is not an indicator of a constitutional crisis. But it sits uncomfortably close to the fault line.

If the Court invalidates the tariffs, it will reaffirm a basic constitutional premise: that raising revenue is a legislative act, not something the executive can argue into existence through an emergency declaration. If it upholds them, the presidency gains another powerful political tool, one that future administrations, of either party, may find hard to resist.

At a time when partisan identity often overwhelms institutional identity, the Court’s skepticism showed that constitutional incentives are not entirely extinct. The justices did not behave as political surrogates. They behaved, as Madison imagined, in defense of the structural boundaries that give each branch its purpose.

The Nov. 5th discussion will not, by itself, restore Congress’s ambition or reverse decades of norm erosion. But it does suggest that the constitutional system retains some capacity for self-correction, even if that capacity appears only intermittently.

And in a moment when American governance often feels like it is eroding from its constitutional foundations, watching the Court reassert the logic of checks and balances was a reminder of what the system was built to do.