Lawfare Daily: Supreme Court Oral Arguments on President Trump’s Tariffs

[Intro]

Marty Lederman: That's just absolutely shocking, right? That the solicitor general would put that in a brief in the United States, like, lead with the insanity, right?

Scott R. Anderson: I'm Scott R. Anderson, Lawfare senior editor.

Peter Harrell: I could have seen a scenario where if that was the first case that had come up in front of the court, you might actually have had a quite different argument today.

But what they have to deal with is, in fact, Trump is in fact using this statute in this incredibly broad, almost unbounded manner.

Scott R. Anderson: On November 5th, I sat down with Lawfare Contributing Editor Peter Harrell and Georgetown Law Professors Marty Lederman and Kathleen Claussen.

We discussed the oral arguments in the legal challenge to President Trump's tariffs before the Supreme Court, live on YouTube.

Kathleen Claussen: I was just surprised at how much we got into Algonquin, and how much that turned out to be sort of a leading point in the statutory interpretation conversation that justices wanted to have.

[Main episode]

Scott R. Anderson: And we're live. Hello everyone. Thank you so much for joining us for a very lively afternoon.

We are three hours removed from the oral arguments in the big Trump tariffs case, one of the most anticipated Supreme Court cases of the term already and it's only November––and I would say, for some of us who've been studying IEEPA for the last 20 years, of our lives, because I never thought Supreme Court was ever going to weigh in on it.

And it's pretty exciting and interesting. We are thrilled to have completely raided the Georgetown Law intellectual trust for purposes of this particular livestream to talk about the oral argument.

We of course have––for the second time in a week, no less––law professor Marty Lederman, also who is our Supreme Court maven. We have law professor Kathleen Claussen, who is our economic law, international economic law maven. And Peter Harrell, who is also our economic law maven, now a visiting scholar at Georgetown Law and also importantly, perhaps most importantly, a contributing editor at Lawfare.

Thank you, all three of you, for joining us today to talk over this important case. There's a lot to get into. It was a long oral argument. It was a detailed oral argument. It was nitty and gritty. But let's start with kind of a topline thoughts.

I'm going to go to Peter first, then Kathleen, then Marty, ’cause that's the order in which I got you to agree to come on the podcast with us.

So, Peter, let me start with you. Talk with me about your topline impressions. Where did you come away from feeling about where the court is on this particular issue? To the extent you can tell, 'cause sometimes it's hard to tell from these oral arguments.

Peter Harrell: Yeah, with that big caveat that, you know, we are all reading tea leaves from the questions justices ask, and that doesn't necessarily indicate where a justice will ultimately come down.

What struck me was that even a couple of the conservative justices seemed skeptical that IEEPA, this 1977 emergency power statute, authorizes tariffs on the scale that Trump has in fact imposed.

Now, that's not to say that all of the conservatives agree IEEPA authorizes no tariffs. You could see Alito, you could see Coney-Barrett to some degree, you know, sort of grappling with, well, may, might there be some circumstances in which IEEPA authorizes tariffs in a real emergency, or where there'd be some discrete goal that the president is trying to achieve?

But I do think you also heard, again, even from some of the conservative justices, a fair amount of skepticism about the breadth of the government's assertion of the extent to which the statute authorizes the kind of sweeping tariffs that Trump has in fact imposed.

So I would say if you were John Sauer, the solicitor general arguing this case for the government, I actually think you did a pretty good job. Like, you have a tough hand.

I think you did a decent job arguing it, but I think you're walking outta that room, going over to Jamieson Greer, the U.S. trade rep, and saying, you know, maybe it's time to have a couple of the attorneys work on our fallback plan in case we don't prevail in this case, or at least in case we don't prevail on all of the things that we would like to see upheld in this case.

Scott R. Anderson: Kathleen, does that sound about right to you? Did you come up with the same impression, or are you maybe a little more skeptical?

Kathleen Claussen: Well, maybe we agree on some, certain parts of that. I mean, first of all I'm pretty sure that they're already working on the backup plan and in fact, we might see the backup plan come into play even before the decision comes out. So, let's see how that comes together.

But no, I mean, I think anyone who listened, right? You really come away with the impression that the government is in trouble, and that you know, there's at least there, there are at least five votes, potentially more, that lean towards saying that the tariffs are unlawful under IEEPA.

That said, you know, I think there are some interesting theories out there as to how the government could still win the case. Depending on how some of the, I think again, conservative justices––and this is where I agree with Peter––how they really want to cut this, right? That there's still a pathway.

There's a pathway according to which the government could still win despite what sound––especially if you only heard the first hour, if you heard the first hour, you really thought that this was a case where the government was, would be in trouble. But then I think it, the details really came out as the questioning went on with the latter advocates as they got into the details, really, about how where's the limiting principle, right?

So, if the government loses, where is the limiting principle as to as to where some of these statutory lines should be drawn, or even the constitutional lines?

But we can get back into that in more detail.

Scott R. Anderson: Awesome. How about you, Marty? Where did you come away with this on?

Marty Lederman: So I came into this, I think––well, first of all, you said you you've got the complete Georgetown––hardly.

Scott R. Anderson: Almost, almost.

Marty Lederman: Jennifer Hillman. We have Steve Vladeck, we have virtually half of our faculty at––just a plug for Georgetown Law Center.

I went in thinking this was among the harder cases to predict that I can recollect. You know, I usually have a pretty good sense, sometimes wrong sense, of where the court's going to go.

And on this one, I thought a couple of things. I thought they would, as Peter and Kathleen have suggested, that the justices would be very uneasy about the way that the president has exercised this authority on the one hand, that they will think that he's exploiting IEEPA for purposes that are sort of, you know, external to IEEPA, perhaps.

And have some doubts, maybe some of the justices might have doubts, about whether his assessment that the trade deficits have caused unusual and extraordinary harms to national security and foreign affairs is a pretextual or a real finding, but one that the judiciary isn't terribly likely to get into.

And so they're uneasy about it. On the other hand, many of them have served in the executive branch and most of them are very familiar with IEEPA and all of the various ways apart from tariffs that this statute has been implemented by presidents of both parties for all sorts of different, very compelling foreign affairs- and national security-related reasons.

And I think they are very, like, my––you know, as Kathleen and Peter suggested, they're very uneasy about a holding the top-level holding would here be, would be IEEPA’s reference to regulating importation of foreign of goods with foreign interests simply doesn't provide any tariff power at all.

The implications of that are, you know, concerning when you think about another president who might use it in a more responsible way. Or a more tailored way, I would say. And so I want to draw the distinction here between the, you know, the universal tariffs that are being applied here, the so-called reciprocal tariffs on the one hand, and the fentanyl-based ones on the other.

I think the way the justices see it, and this finally came to the fore when Neil Katyal was arguing, was, well, what about all of the hypos in which there truly is an international emergency? Another nation is holding Americans hostage, is threatening to go to war. Do you think Congress would've meant to deny the president the power to use tariffs as one tool in the toolbox to try to influence or, right, induce that other, that foreign nation to not harm us in that way?

You'd think that Congress would want us, would want to give the president that power. But this open-ended, basically, ‘you can supersede and go beyond all of the extraordinary statutory meets and bounds and limits and preconditions that Congress has imposed on tariffs over the years,’ to use IEEPA to do that is to blow up the entire tariff regime that Congress has pretty zealously tried to craft on its own over the years.

And so I wouldn't be surprised if some of the justices are looking for a way this might fall on the line between the reciprocal tariffs and the fentanyl tariffs. Or at least a holding that allows for some tariffs in some certain circumstances.

But then the holding can't be that the word “regulate” simply doesn't include the power to impose tariffs. It would have to be something different from that, or a variation on that.

The most obvious candidate for that is to rely on the superseding effect of section 122 of the 1974 Trade Act, which got a little bit of play in the oral argument here. Quite a bit more in the briefing.

I can imagine that outcome. That said, I do think there's at least––there's clearly at least four votes for saying IEEPA does not authorize the broad reciprocal tariffs here that the president has imposed. And there's at least three or four other justices who are very much in play on that question, if not all nine.

But, so I think the odds are that they will find some way to at least declare unauthorized by IEEPA the reciprocal tariffs. The fentanyl-based tariffs, I think, are a closer call, possibly. But they would need a theory that draws a distinction between the two.

Peter Harrell: It's fascinating, I think towards the end of the argument––and it's fascinating to think about the counterfactual because of course the case that is being litigated is a case involving the most sweeping of Trump's tariffs.

Right. But it's fast. It's interesting to think about like the counterfactual of what if Trump had started small and gotten some favorable precedent and then built to, you know, built from there. And I was struck by towards the end of the argument, you know. Justice Kavanaugh brought up not the fentanyl tariffs, but he brought up the tariffs on India, over India's purchases of Russia, Russian oil.

And of course that is the kind of thing, you know, the idea of putting pressure on a country for buying Russian or Iranian oil is something like IEEPA has been used for decades in the sanctions context. And you could––I could have seen a scenario where, like, if that was the first case that had come up in front of the court, you might actually have had a quite different argument today.

But what they have to deal with is the fact, Trump is in fact using this statute in this incredibly broad, almost unbounded manner.

Scott R. Anderson: So, I think that's incredibly useful context and boils down. I want to get a little bit into the nitty-gritty for people who may not have had been able to sit through all you know, two and a half hours of argument that we got today.

Which is long––it's a longer, but not the longest one on record, but a long one.

Marty Lederman: The, listen, the argument of McCulloch v. Maryland went for eight days. So we're not working.

Scott R. Anderson: Not anywhere close to the record. Fair enough. But I didn't have to listen to that in my sweltering hot office, so it's a little bit of a different game.

So the big focus, I think the thing we saw, said the most time really was the statutory text, right. We had several justices, time and time again, used that old phrase, we start with the plain language and come back to that. And that language there is––I think I'm capturing the key elements of, here, from IEEPA.

Does the language by means of instructions, licenses, or otherwise regulate importation or exportation, include the authority to impose tariffs? Right. The first hour that Kathleen noted, I would say it seemed like we saw very skeptical takes of the government's argument that somewhat unambiguously includes tariffs, that regulating importation has to mean tariffs.

And we saw a pushback there from Roberts and Barrett to Justice that we are assuming are kind of in the swing category that could determine the outcome here. But then in that second hour, we saw pushback against the plaintiffs. Also categorical arguments that no, actually for IEEPA to give authority over anything revenue-generating, like tariffs, it would have to be much more express or explicit.

And of course, while we saw a lot of talk about the text, there is a deep, rich legislative history element of this about what Congress is trying to do with AEA that was raised by a couple of justices, but really didn't get too much attention. Although I will say two amicus briefs got name checked one by Aditya Bamzai and another one by Paul Stephan and Andrew Kent.

The latter one, I should say, there's a piece on Lawfare that brings up a lot of the same arguments and previews that, that folks can check out if they're interested. Both of those deal with this complicated history about what was IEEPA trying to accomplish in terms of seizing assets or extracting value for the government in the sort of context.

So, Kathleen, let me start with you on this, if that's okay. Like, talk to me a little bit about where you think the justices are on this textual question, how hard a question this is. Because in a lot of ways, this is a necessary precondition. Because if the text is unambiguous, you don't get to the major questions doctrine.

You might still get to the non-delegation doctrine question, but you don't necessarily get to the major questions doctrine. So if it's unam, if it's truly unambiguous. So, you know, where are the courts going to fall on this? Where do justices seem to be leaning?

Kathleen Claussen: Well again, if I could read those tea leaves, Scott, definitely would be paid more.

But I, you know, I'll be very curious, Marty and Peter, your answers to the same question. Because it struck me that at times, you know, you said that you don't sort of get to those other issues. At times, there seemed to be a bit of almost an overlap. Right? We weren't really clear how we were having a statutory conversation in under the shadow of the Major Questions Doctrine, or were we having it sort of straight up if there had been no major questions doctrine.

But I think you were right to flag the opening hour. Again, for me, this case for so long has been about framing right? And it's, it is, continues to be about framing. And you could see this right out of the gate with the government's repeated refrain that these are regulatory tariffs, not revenue tariffs, and to try and parse the language and emphasize that regulate can be––there's a certain type of tariff that is reg, a regulatory tariff in the first place, and there's just another type that's a revenue-focused one.

I think that became a fairly difficult line for him to walk. And that skepticism continued throughout both hours. But I understood in a sense sort of what he was getting at, of course, right? He wants to grab onto that language and talk about the deterrent effect that these would have, right?

He got, came back to that in the rebuttal a little bit better, the behavior-shaping effect that these could have. And so trying to give the justices, I think, a way to say, yes, regulate, but we can work with, regulate and not implicate all those tax concerns, right? That that, that Neil Katyal led with, right?

Rightly so, from his side in the, in his part of the argument. So, so yeah I, there's a lot more, I think, to be said here, and again, let's hear from Peter and Marty. But just to take, to really take advantage of the framing and to use that as the foundation for the statutory interpretation pieces that would follow, maybe the last thing I'll just add here is this emphasis on the Algonquin case.

Which, for those who are not living and breathing this, right, this is a case that deals with Section 232 of the Trade Expansion Act of 1962. And that's important because that language is a little different, but the key part is it doesn't say regulate and by way of tariffs, it doesn't say tariff. It says adjust the imports. And 232, there, there's been no dispute since Algonquin. And Algonquin reinforces this, that could mean put tariff on.

So if ‘adjust the imports’ can mean that, right, then this––then the logic follows, right, then this likewise could mean that, and I was just surprised at how much we got into Algonquin and how much that turned out to be sort of a leading point in the statutory interpretation conversation that Justices wanted to have.

So, let me start there. Let's see what the guys would say.

Peter Harrell: I'll add just a couple of thoughts. I was also struck by how much Algonquin came up. I mean, I sort of see why, because one of the arguments in the issue, you know, the, both the parties and many of the amicus filings made is that whenever Congress has given the president the authority to impose tariffs, it's done so expressly using words duty or tariff or excise or levy or some such thing.

The one notable exception to that is Section 232, which is part of an act that very clearly authorizes tariffs, right? It's part of the Trade Expansion Act of 1962, or the part of an act that very clearly deals with tariffs. But the operative provision of 232 that, you know, Trump currently relies on for his steel and aluminum tariffs that he currently relies on for his car tariffs, is this power to adjust import, so that––that is the, you know, if you are trying to make the statutory argument from the government side, or if you're trying to grapple with the statutory argument as a justice, you do have this, you know, almost every tariff statute expressly uses a word. The one that doesn't is Section 232. And so you think, well, maybe that's how we read regulate, im, dot dot dot––

Let's be clear, the statute doesn't actually say regulate importation. It says regulate, prevent, prohibit, a whole bunch of other words, importation or exportation, right? But like if we, you know, a lot words––

Scott R. Anderson: I didn't pronounce all the dot dot dots in between.

Peter Harrell: ––you know, to regulate importation, like you gotta grapple with how that might mean “tariff” and Algonquin is your kind of closest textualist parallel.

Scott R. Anderson: Marty, I want to come to you on this too, but let me complicate this, 'cause while Algonquin was an unexpected dog to bark and join the cacophony of this case, another dog that didn't bark as loudly as I thought it might, was the Yoshida case.

It definitely came up, it definitely was raised, but it didn't, at least in my mind, get quite the focus of everyone that I think I expected from the lower courts and from the briefing coming into it as a, an example of something that really led into how IEEPA should be interpreted, I didn't hear that many justice buy into it.

Kavanaugh is very direct saying, look, Yoshida is a precedent of the same language. That matters. And yes, this language was brought in, but it didn't seem to get as much play or as much engagement from the justice. Is that a sign of the strength of the argument or the weakness of that argument?

Marty Lederman: So I think it was principally Justice Kavanaugh who cared about both Yoshida and Algonquin.

He is very, you know, he is very concerned about precedent usually and wanting to reconcile what the court does with what. He thinks is a fair view of what the court has done in the past and what Congress has done in the past.

Yoshida, for those of our viewers who don't know, was not a Supreme Court case. It was a court of appeals case, but it occurred very shortly before IEEPA was enacted and it involved similar language. In fact, virtually the same language and framing with the Enemies Act before that was amended in 1977.

And the court of appeals held, on the one hand, they construed the words, regulate importation of foreign goods to include the imposition, the possible imposition of tariffs.

But on the other hand, and an important footnote said that Congress had subsequently really addressed this kind of problem, the problem that is raised, at least in theory, by the reciprocal tariffs balance of trade, a balance of payment problems in Section 122 of the 1974 Act.

And the challenges’ view, and I think it's a strong one, is that the government can't really rely on the theory the government downplayed. They put it in their brief, but you're right Scott, that they downplayed this argument that the 1977 Congress ratified or embraced the Yoshida decision, they still want to make something of it. Hey, a court of appeals said, regulate includes tariffs.

But you have to take the bitter with the sweet. They also said that when it comes to these kinds of tariffs going forward, Congress has now specified the meets and bounds of those tariffs in section 122. And so I think if anything, it's fair to say that the 1977 Congress probably thought that the issue was mostly resolved by the ’74 Trade Act, right? That kind of addressed more specifically what Nixon had done in that kind of problem. It was not––so I don't, it's not getting a lot of play for that reason.

I don't think Algonquin's going to get a lot of play. It was a unanimous decision. It was pretty uncontroversial. I just think that's Justice Kavanaugh for the most part.

I will say though that I don't think the justices were very skeptical of the, what I'll call the top-line argument, which is that, just looking at the text, the absence of the word tax, impose a duty, impose tariffs in conjunction with all these other verbs and nouns as Justice Barrett pointed out, and the nouns that are in there, is in and of itself determinative, right?

Like if this were a more modest case brought by the, our current factual president who's dealing with an exigency, Congress could not have anticipated where a tariff might really address a, an emergency in a discreet way, I think they probably have no problem, maybe all nine of them, saying that the word regulate encompasses the imposition of tariffs. And the plaintiffs, to their credit, Neil Katyal did not. He, you know, he went out of his way three or four times to say, our argument is not that you can just look at the text, and that determines it. He wanted to broaden the focus. And I think this was the right strategy, and I think it's also correct as a matter of just discerning Congress's design.

He said, look, this is the one area in imposition of tariffs, in contrast to all these other things––prohibitions, quarantines, quotas, all these other powers that are given to the president in IEEPA. Those are, you know, not nearly as comprehensively covered by other statutes, and so you'd want to give them those powers in an emergency situation.

By contrast, Congress is all over the question of tariffs and has been very particular about passing a lot of laws that are meant to deal with exactly the problems at issue here, for whatever reason, they have. Zealous about keeping that control over what the executive does when it comes to assessing tariffs for reasons that are both historical and institutional.

And I think there's a lot of different stories to be told about why that is. And so Neil Katyal’s focus was, you can't look at IEEPA in isolation. You have to look at it as part of a corpus of laws in which Congress has a very highly reticulated scheme of when tariffs can be imposed, under what conditions, for what times, against whom, for what purposes, et cetera, et cetera, and looked at in that broader statutory focus.

That was definitely the strength of his argument, I think. And I think it resonated with most of the justices. So it won't be determined on the plain text of IEEPA, nor do I think the major questions doctrine. It might, the major questions doctrine might appear in the opinion, but I don't think it's what's going to influence what the justices are doing.

Scott R. Anderson: Well, interesting. That leads right to the next topic I want to talk about, which is the major questions doctrine, which I would argue probably got the second most focus after the textual arguments and the context and legislative history of IEEPA.

And at one point we had, Justice Gorsuch actually had two different points, really almost try and bludgeon the plaintiffs into conceding that they needed the major question doctrine to win their argument, and in the case of the counsel for Oregon, actually did succeed.

He basically conceded at the end, after Neil Katyal wouldn't for the small business plaintiffs. I––let me come to you on this, Peter, in the first instance, although Marty and Kathleen, I also want to get your views talked about what you saw in the major question doctrine here.

I mean, if the statute, if the major question doctrine seems clearly implicated, at least by the global tariffs because it is such a massive social economic question, you would then say, okay, this doctrine that this court particularly has developed the last few years, says if something is of this big magnitude, we need to look with extra scrutiny to confirm that Congress intended to confer this authority.

And that would mean that if you have an ambiguous statute, which maybe is the median outcome of the statutory analysis, then that's a problem for the government. But did you see an, a critical mass of justices buying into this?

I mean, it seemed to me that you saw Chief Justice Roberts, Justice Barrett, all hinting at it and emphasizing the ambiguity of the statute, but it really was Gorsuch that really seemed to hit it most squarely on its head. Kagan mentioned it once or twice. What role do you think that was playing here?

And Marty, then I want to hear from you about why you think it's unlikely to play a central role.

Peter Harrell: Yeah, so the major questions doctrine has, you know, been an issue as this, as these consolidated cases have wound their way through the court system. And I was not at all surprised that we had a fair amount of discussion of the major questions doctrine here.

You know, the government, and you heard this with Sauer, today, has sort of two arguments for why the major questions doctrine shouldn't apply. The first of which they're not pressing that hard on, which is that it doesn't apply to presidential action. It only applies to agency action.

I think you saw the federal circuit deal with that. You did not see Sauer really pushing that argument here, but in his entire framing of the case, he is arguing the government has been arguing, you know, this is really a foreign affairs issue. And the major questions doctrine doesn't apply in matters of foreign affairs. And you did see this come up throughout the debate.

The counterargument there, which also came up quite a bit is that you know, while it is it may or may not be true, and I defer to Kathleen on this, whether the president has inherent powers in the realm of foreign affairs or not. Well, that may or may not be true. Certainly the court believes that to be true.

It is kind of, almost equally indisputable that at least in peacetime, the president does not have any inherent authority to impose taxes or tariffs. That is entirely a congressional prerogative. So, you know, if the more you think of this as a case that is about taxation the more you logically would view the major questions doctrine is applying.

And the more you think of this as a foreign affairs case and the government's view, the more you can argue that the major questions doctrine doesn't apply. And I think you saw those, that tension playing out, you know, throughout both the justice's question throughout Sauer’s arguments. And throughout both Katyal’s arguments. And also throughout Mr. Gutman, the Oregon Solicitor General's arguments.

Scott R. Anderson: So, and this quick question, the major question doctrine strikes me as particularly relevant 'cause it seems like the clearest way that you're going to hit that split potentially between the reciprocal or global tariffs and the fentanyl-slash-trafficking tariffs, whatever you want to call them, because they're of different orders of magnitude.

So, Marty, I'm kind of curious about why you don't think the MQD is likely to come in here, particularly if you see the intuitive appeal on the kind of broader equity-slash-political factors-slash-you know, assorted ephemera of that split.

Why you don't do the M-Q-D, M-Q-D playing that role? Because that's how I seem to be, that's how I've always thought of it, but I'm curious if maybe there's other ways to arrive there or if maybe that's giving it too much centrality.

Marty Lederman: So, as I said, I can––I wouldn't be surprised at all if a lead opinion invokes the major questions doctrine, but I don't think that's what really moves the justices. They just, I see that doctrine up out of thin air a few years ago, and it's what's really getting at and to, to her credit, I don't agree with a lot of Justice Barrett's separate concurrence in the student loan case in Nebraska v. Biden, but she's being sort of thoughtful about what's going on here, which is, what should our presumption be about what Congress is up to?

And yes, we should be more skeptical that they're giving away the store to the executive than giving away tiny little things to the executive. Right? Like the Congress would be more hesitant about doing the former than the latter. This is obviously a very big store.

On the other hand, they all think and they do know––so it's a major question, there's no doubt about that, but so are all IEEPA questions, right? They're all major.

And then the question becomes what's okay, fine. It's a major question. But they're not going to issue an opinion that calls into question because of MQD, any of these other authorities that might be implicit in IEEPA that have been exercised for many years.

Some of them you could say, it's just unambiguous. It's a major question. And it's clear Congress delegated it to the president. So that answers the major question “yes.” But others are going to be much more ambiguous. I think. Kathleen knows much more about the statute than I do, I think. And there––and therefore I, what I think they'll be concerned about is that major questions now, since certainly non-delegation analysis, which I do not think is going to play a role, the implications for the rest of the IEEPA authorities is going to be something they're very focused on.

And that is why I think that it the more straightforward way to decide the opinion and what's actually going to drive them, regardless of what the opinion says is. What did Congress intend here? When you look at their full, everything that they've done in this area, including the ’74 Trade Act and other statutes, and the answer to that is maybe they did intend to give the president some tariff authority for true exigen––unforeseeable exigencies that are much more discrete, but when it comes to the reciprocal tariffs, kind of, Congress figured out what they want to do with that, and it's in the statute.

President Trump's just trying to circumvent the decisions Congress has already made. I don't know whether that rights, but that would seem to me, that might take the form of an MQD opinion. But I think it's more about, what is it reasonable to assume Congress was doing here.

Kathleen Claussen: Scott, I think that listening to Peter and Marty and has only reinforced my feeling at the end was at the end of the argument earlier today that MQD is kind of the wild card still here, right.

It's just, we just don't know how they're going to work with it and nothing about what they said in in their back and forth earlier today I thought was a particularly guiding light to help us answer how that was going to go.

Scott R. Anderson: Fair. That's useful.

Marty, let me come to you on the other doctrine you just mentioned about not playing a role in this analysis. And that is the nondelegation doctrine, something that was front and center of some of, certainly the early briefing and some of the legal challenges of this has been front and center in a number of the other legal challenges to some of the, IEEPA-based tariffs that president has put forward that haven't, or rise all the way to the court.

This idea that IEEPA itself does not give enough of intelligible principle for Congress to delegate these huge swath of authority that it has given to Congress through IEEPA, including this tariff authority, or perhaps most specifically this tariff authority.

Talk to us about why you don't see that playing much role, because I think you're right. It really didn't come up too centrally in the argument. A couple, in a couple of spots here and there, but it never really got a lot of emphasis and never really got a lot of debate going between the justices, which I take as an indicator as to how seriously it's likely to play in how they're thinking about this case.

Curious about your thoughts about that.

Marty Lederman: So this is actually pretty simple. I've never thought it's going to drive the case because a nondelegation doctrine holding is basically a holding that IEEPA is unconstitutional. Because it delegated, it is delegated far more, you know, or at least equally as significant powers to the president in fairly, in ways that are not very judicially reviewable, let's put it that way.

Even if there are nominal limits on what's an emergency, what do you have to, you know, demonstrate to show that it, that a threat is extraordinary and unusual and the like. The courts are not gonna be very eager to get involved in assessing those decisions.

And therefore, Congress has imposed has offered extraordinarily unbounded delegations in this area to the president. And there's––I don't think there's a justice on the court, except possibly Gorsuch, who is going to be troubled by that.

And it's very hard for me to see why you'd say that including tariffs makes it unconstitutional, but everything else is constitutional. That's, I just don't see that happening.

Peter Harrell: So I agree.

I don't think that the major questions doctrine is going to is going to play a particularly significant role in in this decision. But I actually, what one of the things Marty said, and I agree with Marty, that I can see a scenario in which the court tries to you know, draw a line here where IEEPA doesn't authorize the reciprocal and universal tariffs maybe does authorize the geopolitical tariffs if you will.

I think very practically the challenge that we as a country will see with that if the court goes down this road, is that we have a president who will not hesitate if that is his legal authority, legal right to do, to come up with pretextual reasons to reimpose all or substantially all of these tariffs you know, just not for the trade deficit, right.

We will discover he cannot impose a tariff on the European Union of 15% to deal with the trade deficit. But, you know, Emmanuel Macron offended him, and the fact he is offended is a national emergency that authorizes a 15% tariff on the European Union.

And so I do think, because it is going to be

Marty Lederman: I don't know Peter, but Peter  that wouldn't be extraordinary and unusual though.

Peter Harrell: But I don't think the court's going to want to review like what is and what is not extraordinary unusual here. And like, maybe if he's only a little bit offended, it's not extraordinary unusual, but if he's very offended, it is.

Like, I just think this could be a very hard set of line-drawing for the court.

Scott R. Anderson: Well, Peter, that leads actually perfectly into the next set of questions, which are the dogs that didn't bark, or at least not very loudly here.

And there's kind of two interrelated ones that you've written about for us at Lawfare. You and I have talked about in some of our prior podcasts and conversations about, in this case, and that is the relationship to the emergency nature of the authority.

And the kind of two nexus of that one is the question of the declaration of emergency itself, the reviewability of it. We had a little bit of a soliloquy on that back and forth about how judicially reviewable is it, I, you had, I believe it was Sauer, say, well, there's procedural elements that are reviewable, but the course substance of the determination that this was a, an emergency is the part that's not reviewable now of the, executive branch.

Then you have the separate question of, okay, assuming there is an emergency that has been declared reviewable or not, to what extent are the relationship between that emergency and the actions being applied? Something that's reviewable, for example, if it's pure pretext and the actions don't have much correlation, something that was essentially put forward in regards to particularly the fentanyl tariffs, I believe by counsel from Oregon. I could be wrong, it may have been Katyal as well.

So talk to about why I did not see these come up very prominently here. They've been a big talk of, I think the, IEEPA nerd conversation, in part because those questions are so foundational, they would have broader ramifications if they were implicated, and maybe that's why they're not being brought up here.

But I didn't hear them that much in this argument. Do you think that's a sign the courts just don't want to engage in this? That is not playing a central role in what they're thinking about. Why weren't these things more central to the debate?

Peter Harrell: Yeah. You know, it's very interesting you say that because, you know, we, as you say, we had almost all, maybe 80, 90% of the argument was fundamentally about, you know, does regulate, dot dot dot, importation or exportation include a tariff power without a lot of debate at all about, you know, are declarations of national emergency judicially reviewable? Is a determination that something is an unusual and extraordinary threat judicially reviewable? And then finally this question of do the tariffs deal with, 'cause IEEPA requires the act taken be to deal with the unusual and extraordinary threat hardly came up at all.

It's funny, I, towards the end of the argument, I think it was Justice Jackson said you wanted to talk about the deal with argument, but she even referred to it as with Mr. Gutman. She said, I want to talk some about, I think it was your secondary arguments here, right? So even the justice was sort of acknowledging all these other issues, our secondary our secondary arguments.

I think the reason we have not seen more debate, sort of, we did not see more debate about those arguments. Some of it may just be time, right? You start with the big questions and you run out of time. But the other one is like, there is quite extensive up through the federal circuit level case law that, you know, these kind of declarations of national emergency are not judicially reviewable. That the relatedly, it's hard to review the unusual and extraordinary threat.

It has been litigated quite extensively in the, IEEPA sanctions context, and the courts have been pretty deferential and I think that has sort of gotten the plaintiffs in this case to not particularly heavily emphasize those arguments because they think those are uphill battles and that they are more likely to succeed on this matter of statutory construction.

Scott R. Anderson: So let's go on to the question about what comes next, because I think this is a big background consideration. We did hear it come up in argument. We heard particular Justice Barrett––somewhat ironically, given that like, I think just within the last month or two we had an opinion where she says ‘it doesn't matter if claims brought against the federal government have to go through, through two separate channels and if it's completely inefficient, 'cause that's the way Congress designed it––in spite of that view, in that case, she in this case said what about all the chaos is that's going to come about reimbursement? What's going to come after this if we strike down these tariffs? Isn't that a big problem? And it does open the door about like, what comes after this?

So, let's start, instead of going to the reimbursement part, which I think is important. Let's start with the reimposing Trump tariffs aspect of this. I'll start with you on that, Peter, because I know you and I talked about this before. If Trump tariffs get struck down, what are the alternatives that he has other than IEEPA to bring in?

Let's just assume for the time being that this is a world in which IEEPA is no longer available to the president or is, is impractical. Because its been practically narrowed for tariff purposes. We know 232, 301, this alphabet soup of three, three-number authorities that deal with trade and tariffs.

How big is the delta between that and what he's doing with IEEPA? And what does that mean in terms of policy difference differential? Is it just that they're slower? That take more time to implement? Are they less agile? What will the post, you know, V.O.S. Selections decision tariff regime look like, assuming the Trump administration is going to find some way to try and pursue it again?

Peter Harrell: So I'm happy to talk about that, but I actually do want to talk about refunds. Because I think there is a myth that this, is actually complicated, right? In fact is from a mechanical perspective, this actually does not have to be complicated.

Customs and border protection actually is actually quite good ITinfrastructure to process both, you know, incoming estimated tariffs and also to process potential refunds of tariffs when, you know, there was some valuation change or there are all kinds of sort of technical reasons why you might adjust your tariffs. Also, the way mechanically an importer pays tariffs, you pay a estimated tariff and then 10, 11 months later, it's what's called liquidated, which is where it gets finalized.

Most of the IEEPA tariffs have not been liquidated or finalized yet. So actually from a mechanical IT perspective, it would be quite simple for CBP to kind of automatically, at the liquidation stage or when importers file their final paperwork, to simply provide a refund of the IEEPA portion of the tariffs.

This is actually not mechanically difficult. Now there are questions because like the per the entity that paid the tariff might not, might not be, you know, like there might be some contractual issue between that entity and another entity. But from the government's perspective, it is a myth that this has to be complicated.

That is not to say that the Trump administration will not choose to make this complicated because they don't want to pay refunds. But we need to understand that is a policy choice they would be making, not that it is actually mechanically difficult or would actually have to create chaos to do refunds but you sort of, I'll give a shorter answer now for what Trump would do next. So I think there are kind of two options that he could take if he loses the tariffs.

And I should pause it here. One question of course will be whether he loses all IEEPA tariffs or only some, because if he only loses some IEEPA tariffs, he may try to recreate some of the trade deficit, you know, tariffs under other pretextual justifications, right?

So that would be one option for him. But if he loses all of the IEEPA tariffs, I think he kind of has a choice of two things. You know, the first thing you could do would be to invoke Section 122 the Trade Act of 1974, to impose a 15% tariff for up to 150 days, and use 150 days to like figure something else out for the long term. And that might be, would probably be a combination of 301s and maybe some expanded 232s.

His other option, and this came up a little bit at the or oral argument is section 338. So this is section 338 of the Smoot-Hawley Tariff Act. It is still maybe on the books. There's some questions that came up a little bit during oral argument about whether it has been superseded or not.

There are some questions about mechanically, how it would work because it has not actually been used since 1940 or 1941. But in theory 338 could be a pretty flexible alternative basis for tariffs.

But if he goes down the 338 route, he may find himself back with some major litigation against it quite quickly. Which is why if I were advising USTR, not that I think they particularly want to hear from me these days, but why, if I were advising USTR, I'd be like, pull your 122 trigger. And then do a bunch of 301s or try to get Congress to pass some new taxes. You know, something like that.

Scott R. Anderson: And just out of curiosity, functionally, the reason why it seems I, although I don't think we a hundred percent know why President Trump and his administration have preferred IEEPA over these other authorities so far, is because of ease of implementation, ease of administration, and then flexibility.

They can adapt. And we've seen the President do that. Adjusting rates, adjusting targets as negotiations are ongoing, very dynamic fits into his mercurial deliberately, often mercurial, or at least described as deliberately mercurial negotiation strategy.

Does that still the case under these other authorities, or is that likely to be a little bit of an impediment to the dynamics that they've pursued in these negotiations, which is this rapid adaptation to conditions in response to negotiation positions? Is that as easy to do under these other authorities?

Peter Harrell: So, it's not. I mean, I think that these other authorities are, you know, at the end of the day, could allow President Trump to recreate a substantial, though not complete share of his tariffs. But all of them, whether it is 301 or whether it's 232––come back to 3 38 in a minute––all of them have substantial constraints.

So 122, for example, cap of 15%, right? You can't do 50% on Brazil under 122, and capped at 150 days absent congressional action, right? So it goes poof in five months.

Section 301, you have to do. Fact finding of an unfair trade practice that the foreign country is engaged in that burdens us commerce.

Now, you know, traditionally that has been a very long and detailed and involved process. Maybe you could shorten that up some, but you do have to do the fact finding. You would have to notice and comment adjustments in tariffs. Like, you know, it's a lot more process. 232, as we see, Trump is doing a bunch of 232s.

He's actually gotten not that many of them out because it takes a lot of fact-finding and, you know, proves complicated. So I think at the end of, if I think sort of mathematically, if we had sort of 15, you know, if we had before Trump coming in, putting aside China, maybe 3% average U.S. tariffs. And if today we have 15% average US tariffs, I bet Trump could get us to like, you know, 11% average tariffs with these other authorities, but he couldn't turn them off and on. It would take him quite some time to increase them or decrease them.

Even 338, you have to give 30 days if it is lawful, you have to give 30 days’ notice before actually imposing the tariffs. Even that, he couldn't just decide he's mad at Doug Ford, the premier of Ottawa, over a TV ad and you know, ‘I want to turn on 10% tariffs over that.’

Scott R. Anderson: Well, and this kind of feeds into a broader question I want to take to you, Marty, as somebody who you know has spent a good part of your career advising the President and the White House about the law, where it constrains them, you know, ways they can try and pursue policy objectives consistent with the law and the gray areas that sometimes exist in parts of the law about how to shape it.

Because it strikes me there's like a strategic question that kind of goes back to actually Peter raised at the top of this, which is that, and I think you made this point, Marty. This is the case the Trump administration ran to the Supreme Court on it is after they've implemented their global tariffs.

It's the most aggressive use of this authority that one can really imagine. They did initially start with the fentanyl-trafficking tariffs, right? There were a number of months where those were the tariffs on the books before he got to the reciprocal tariffs. And there were legal challenges to those.

And you can imagine a world where an administration saying, we are in office for four years. We want to pursue tariffs aggressively. We want to vindicate this authority. How do we get to the end of this? Well, maybe we start some test cases and we try and run these up to the courts to vindicate, for example, that you can do tariffs under IEEPA.

And then once we have that, we're in a much stronger position to go do what we want to do in other contexts. You know, I come sometimes see elements of that kind of strategy, maybe even in things like the domestic deployments context, which you and I talked about last week and we can circle back on that.

But here I had trouble understanding exactly how the administration arrived at where it is legally, particularly at this moment where it seems like they very well might lose on this topline policy priority.

Do you have a sense of that? Is it just, you know, the tail wagging the dog, this is not a legal strategy, this is a political strategy and the lawyers are playing catch up as best they can, which is part of the lawyer's job and maybe that's the way it happens, or is there something more substantial happening here?

Marty Lederman: You're asking me to accurately describe what goes on internally in the Trump administration. My guess is probably a good deal worse than yours are many other people on this look, I think.

It seems to me, just as an outside observer, this is one in which Donald Trump truly believes that a, that his ability to, as Peter calls it, the mercurial negotiation game that he's playing with all these foreign countries, will redound to the benefit of the US economy in profound ways, rightly or wrongly. He truly believes that.

And remember what I mean, one of the most extraordinary things about this case is that the solicitor general of the United States actually opened his brief in the Supreme Court by quoting the president to the effect of the United States was a dead country, and now he has revived––t's just absolutely shocking, right, that the solicitor general would put that in a brief of the United States, like lead with the insanity, right?

And, but that's what the president thinks. And so you can't wait until the second year of the administration to say, oh, now there's an emergency. And we've been a dead country, and I haven't been doing anything about it for two years.

He thought––and I don't know whether he is right or wrong, that this would profoundly improve our economic condition and that his negotiating skills with foreign leaders would get us there.

And I think he probably was advised that at, from a legal perspective, the kind of the slower rollout, the more discreet and targeted fentanyl-based or rollout that you're describing, Scott is more likely to stand you in good stead with the courts going forward.

But I don't think that's––I think this is one he really just cared about a great deal, right? It wasn't just that he campaigned on it and wanted to put down a marker that he's doing it. There's a lot of these things in which the courts are enjoining him from doing things. And he's perfectly, probably, fine with that.

He can tell his base, “I tried.” And we tried to do this, that and the other. This is something I think the, this is one of the principal things he wants to do. And I, if I had to guess, I'd say that's what's going on here. That this is really coming from the top. This isn't the lawyering strategy.

Scott R. Anderson: Fair enough. Fair enough.

So we are almost at time, but I don't want to leave until we give the opportunity for some parting thoughts-slash-predictions if you're up for it. I don't think it's you know, tight predictions, detailed predictions aren't necessarily required, although their welcome if anyone wants to take a stab at it.

But I'm curious as to where you all think we are likely going to stand, you know, a month from now. Could be several months from now, but I think most people are expecting the Supreme Court to move relatively quickly if it can get on the same page on this in the next, you know, few weeks or two months before the end of the year.

Marty, you've already hinted at your sense of the takeaway on this. So talk to us about your vision, about where you think this comes out and give us a confidence interval. How strongly you feel about it.

Marty Lederman: I, you know, I'm usually bad at that, so if I say something, you should basically assume the opposite's going to happen.

But coming out of the argument, it strikes me that the three Democratic appointees and Justice Gorsuch seem very strongly inclined to at least want to say that IEEPA does not authorize the, that the universal tariffs. I think all of the justices are more, are wary about a holding that will affect not so much the fentanyl tariffs themselves, but the hypos that they were raising about true exigencies.

Why would Congress––Justice Kavanaugh's, the laugh line of the day was Justice Kavanaugh asking the solicitor general of Oregon, you know, Congress has given away everything to the president here. It's given him all of these tools to adapt to emergencies, foreign affairs, emergencies. Why would––I know your theory is that they've given him everything but tariffs.

Why would they have excluded that tool? Why would they have cut the hole out of the donut? To which his response was, no, it's a different pastry altogether.

Which is a nice laugh line, but then he was met immediately by a, you know, just a flurry of responses from both sides of the court, including Justice Kagan. It's like, well, gimme a reason why Congress would've denied this power to the president. What's wrong with it?

Now, I do think there's a good story there about how the nation has historically treated taxes and how Congress has been very very zealous, as reflected in its statutes.

I know I'm being a broken record on this, but Congress, for whatever reason, has not wanted to give away everything to the President when it comes to tariffs. And rightly or wrongly for good or ill, it thinks it's more important that it have some control over those things. I, I don't know how that writes, but I can imagine them.

Yeah, just being a little bit wary of a holding that says IEEPA doesn't authorize the imposition of any tariffs whatsoever. Maybe that's the easiest way to write it. And they're comfortable. Look, presidents have not used IEEPA for this before. The world has not come to an end. We weren't a dead country.

You know, it's like we haven't died. It's fine. It gives him plenty of other tools. Plus he has a bunch of tariff authorities that Peter's gone over for the last 20 minutes that has been sufficient till today. It'll be sufficient till tomorrow. And if it's not, Congress will give him more. That's a possibility.

But another possibility is they might be looking for some sort of interim holding. And the one thing that occurs to me is this 122, use of 122 to draw the distinction. I don't know whether that flies or not and whether that does the trick. So I think, you know, two thirds likelihood that the––and universal tariffs, the reciprocal tariffs are declared to be not authorized by IEEPA reserving, whether he could do some of them through other authorities and on the fentanyl tariffs. I just don't know. I just, I just don't know at all. I don't have a strong sense of where they are on that.

Scott R. Anderson: Fair. Kathleen, what are your thoughts?

Kathleen Claussen: It's always good to come after Marty because he says things much better than I could. And I think I agree with him to a large degree on the main things you're sort of looking for here are how does it write, as Marty said, and what's the easier path versus the harder path, and which one of those, what they take particularly I think, informed by the hypotheticals that were raised by various of the justices.

But I do come back also to where I started our conversation sky with respect to the, what's the limiting principle, right? That argument that really captivated the attention of those justices, who I think are the wild cards. And so, review, I think we all should review the transcript, go back over the exchanges and see sort of if we can get a better sense of where different justices are coming back on that.

Maybe the last thing to say here, and I don't know if y'all talked about refunds in my absence, but I think that's another part of the hypothetical collection, right, is also having the justices think through what that might practically mean, which Justice Barrett seemed interested in, more than maybe some of the others.

But the last thing I was going to say was, I was to some degree reassured by at least some justice's skepticism about what we kind of call Article Two creep here. But I do think that's something that we need to continue to watch.

And so I'm not going to do the crystal ball here, but I think if, really, Justice Kagan, I think led with this early on and to the extent that other justices get on board with the government's push backing, pushing back against the government's Article Two creep that trying to make this Article Two case when it's really an Article One case that to me would be an important step for them to take.

So I'm hoping that'll make it into whatever opinion wins the day.

Marty Lederman: I will I'll just chime in to say I agree with Kathleen entirely. I mean, Solicitor General Sauer made some strategic decisions that I think turned out to be wrong. In particular, he didn't lead with the two strongest arguments which came up later.

One is the series of hypos and the other is why? Why? You know what, you know, the greater include should include the lesser. He mentioned them, but they weren't the focus. But he decided to lead with Dames & Moore in the first instance, thinking it would grab the chief justice, who I believe was Rehnquist's clerk.

Yeah, not at all. And the chief is like, basically the subtext was, I was there. That was a case for one day only, and it has no precedential impact. Next.

And the next thing is, well this is an area in which the president has significant Article Two authorities. And there seemed to be, and maybe Justice Thomas would accept that. Otherwise no justice thinks the president has Article Two authorities to issue at least outside of wartime tariffs and to regulate foreign commerce. So get off of––so that's a dead letter here too.

And so those strategies turned out to be not the right strategies, but the justices were doing, I thought, a better job defending the Trump tariffs than the solicitor general turned out to be.

Why? That's what it looks like. That's second, you know, it's after the fact. It's easy for me to say, I didn't have to stand up there and see what the reaction was. He was making predictions about what would resonate and what wouldn't, and I don't think he chose the right things.

Scott R. Anderson: Yeah, fair enough.

Fair enough. He did tell me he was a little under the weather, so we'll cut him a little slack on that hard. It's hard to think through a cold and a gravelly voice. Even more gravelly than usual.

Peter, we'll turn to you for our closing thoughts or where do you see things coming out a few weeks down the road or months down the road when we finally get an outcome in this case?

Peter Harrell: Look, I do think especially I, I have thought for a while, and I think today's argument reinforced in my mind, it is more likely than not so above 50% that the Supreme Court finds IEEPA doesn't authorize these tariffs. I do wonder a little bit if we'll get, like I could see an outcome where we frankly get a sort of set of concurring opinions that get us to, like, these tariffs aren't authorized, but create some ambiguity about what is authorized going forward.

In a way, that's what we got at the federal circuit, right? You had four judges saying there is IEEPA doesn't authorize any tariffs. You had three judges who basically, you know, seemed to have the view. It doesn't authorize these tariffs and like be interesting and potentially quite confusing if we got, you know, a similar split here, you know, four justices saying no tariffs at all. Three justices saying, you know, not these tariffs, but maybe something else.

So we could actually get a fairly muddy decision about a forward-looking decision, even if it finds these tariffs are unlawful. I hope we don't get that, because I think that would be very muddy and unfortunate there. Great for litigators. So I hope we don't get that. I hope we got a clear decision.

Marty Lederman: But I do think here we have an actual disagreement. We have a disagreement.

Peter Harrell: You think we won’t get an unclear decision.

Marty Lederman: I think the chief will write the majority opinion and it will have as many justices as he can bring on board on it. And he will write it to get them as many as he can on it.

Peter Harrell: I defer to Marty on that 'cause he knows Supreme Court much better than I do.

Scott R. Anderson: Lawfare Live, The Now. I'm Scott R. Anderson, Lawfare senior editor. On November 5th, I sat down with Lawfare Contributing Editor Peter Harrell and Georgetown Law Professors Marty Lederman and Kathleen Claussen to discuss the oral arguments and the legal challenge to President Trump's tariffs before the Supreme Court, live on YouTube.

This conversation is a part of Lawfare’s new livestream series Lawfare Live, The Now. Subscribe to Lawfare’s YouTube and Substack to receive an alert the next time we go live. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get an ad-free versions of this and other Lawfare podcast by becoming a Lawfare material supporter at our website, lawfaremedia.org/support.

You'll also get access to special events and other content available only to our support available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from ALIBI Music. As always, thank you for listening. Until then, we are out of time.

This has been Lawfare Live. Thank you to Kathleen. Thank you to Marty. Thank you to Peter for joining us. Thank you for everyone in the live audience for joining us as well. Of course. And for those listening and watching at home, if you would like to join us in the live audience for these things, you can of course become a base Patreon supporter of Lawfare.

Go to lawfaremedia.org/support. You can find more information on that. Until then, thank you everyone. Appreciate it and have a good evening.

This conversation is a part of Lawfare’s new livestream series Lawfare Live, The Now. Subscribe to Lawfare’s YouTube, and Substack to receive an alert the next time we go live. The Lawfare Podcast is produced cooperation with the Brookings Institution. You can get an ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from ALIBI Music. As always, thank you for listening.