When the Supreme Court agreed last September to hear a dispute over President Donald Trump’s billion-dollar tariffs on foreign goods, it heeded the administration’s plea that time was of the essence.
To Trump, the case is a matter of “LIFE OR DEATH for our Country,” as he wrote on social media. Treasury Secretary Scott Bessent warned that the US is “on the brink” and “the longer a final ruling is delayed, the greater the risk of economic disruption.”
The court imposed a fast-track briefing schedule and held oral arguments on November 5. That session exposed multiple sticking points among the justices, but the public’s expectation of a relatively quick resolution endured.
As global markets churn and American consumers anticipate even pricier goods, the question persists: Does the president have this tariff authority or not? And when will the Supreme Court tell everyone?
The urgency has been heightened by Trump’s Monday announcement of increased tariffs on goods from South Korea, from 15% to 25%, and last week’s initial threat of new tariffs against European nations that refused to back his plan to control the Danish territory of Greenland. (He backed down from the tariff threat by mid-week.)
The nine justices have begun a recess and are next scheduled to take the bench and possibly issue opinions on February 20. They could interrupt this recess if a decision was finished before then. But such a move would be highly unusual.
Lawyers have advised clients to be patient.
“We’ve said, ‘We know you’re all frustrated. You want a resolution immediately,’” said Oliver Dunford, a Pacific Legal Foundation attorney who filed a “friend of the court” brief on behalf of Princess Awesome children’s clothing and other small US businesses. “But in terms of litigation, this is really, really fast. Getting to the Supreme Court in a matter of months is really fast.”
Dunford, like many lawyers involved in the case, had thought the ruling might have come by now. So did the news media. Throughout January, the financial press, especially, ran weekly stories with such headlines as “No Ruling on Trump Tariffs”, “Supreme Court Doesn’t Rule on Tariffs” and “Is Trump Tariff Supreme Court Ruling Today?”
Asked Tuesday about a possible loss at the Supreme Court, Trump said on Fox News, “We will find something, some other way of doing a similar thing, but it’ll be more inconvenient.” His emergency tariffs are generating tens of billions of dollars for the US Treasury each month.
There are some explanations for the wait, beginning with the sheer difficulty of a case. The justices during oral arguments appeared conflicted over when a president can seize Congress’ usual tariff power. Trump has asserted authority under a 1977 law intended for international economic emergencies.
Then there’s the reality of no hard and fast deadline. In the past, when the justices dashed out rulings, there was a looming external deadline. Last year, for example, the court swiftly heard arguments and resolved a dispute over a federal law that required Chinese divestment of TikTok. The ruling was handed down two days before the law’s January 19 closing date.
No imminent deadline exists here, even though the total money at stake is climbing as the justices allowed Trump to continue collecting the tariffs while the legal battle plays out. Bessent estimated that tariff revenue to the US Treasury could reach $1 trillion by June, which is when the court usually wraps up all opinions heard in an annual session.
The potential difficulty of refunds for that much money troubled some justices during oral arguments.
“If you win,” Justice Amy Coney Barrett said, addressing Neal Katyal, a lawyer for the challengers, “tell me how the reimbursement process would work. Would it be a complete mess? … It seems to me like it would be a mess.”
In the November 5 argument session, which lasted nearly three hours, Barrett, along with Chief Justice John Roberts and Justice Neil Gorsuch, seemed most conflicted on how to resolve the controversy.
The other six justices appeared to fall into two clear camps: Inclined toward Trump’s assertion of tariff authority were Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh; Disposed against him were Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
If the court adhered to its age-old practice, the justices voted in private on the morning of November 7, two days after oral arguments. The discussion in the small oak-paneled conference room that adjoins the chambers of the chief justice would have begun with Roberts.
Possessing a strong sense of institutional control and desire to know where key colleagues stood, Roberts may have discreetly sought out some views before the session.
Economics professor: 96% of tariff burden is on U.S. consumers
Once in their places around the rectangular table, Roberts would have voted first, followed by the other eight in order of seniority. If Roberts indeed ended up in the majority, he would have then decided who would write the opinion. In the past, he has kept the most important cases for himself, and lawyers who know him well say that would likely extend to a case of this magnitude.
Discussion in the conference room is secret, as is the drafting of opinions. In addition to the majority opinion, there could be a concurring statement from a crucial justice and multiple dissents. Finished drafts are circulated among all justices, prompting a flurry of memos in response. Justices on the side of an author may ask for some modification. Justices on the opposite side may be provoked to intensify objections in their drafts, which can trigger a succession of heated reactions and dueling footnotes.
Most important: the author writing for the majority needs to hold onto at least five votes, for a majority.
Roberts, for his part, put forth arguments in both directions, at first suggesting Trump had exceeded his authority. Roberts referred to tariffs as one of the “core” powers of Congress under the Constitution. At another point, however, he noted that “Foreign affairs is a core power of the executive.”
Roberts also observed that the high court had so far declined to block the tariffs, even after lower court judges declared them unlawful. “And I don’t think you can dismiss the consequences,” he said. “One thing is quite clear, is that the foreign-facing tariffs have in several situations been quite … effective in achieving a particular objective.”
The 1977 law at the heart of the case, the International Emergency Economic Powers Act (IEEPA), authorizes the president to “regulate … importation” of goods in a national emergency arising from an “unusual and extraordinary threat” to the national security, foreign policy or economy of the US.
The law has previously been used to impose economic penalties but has never been used for tariffs. Barrett, while troubled by some of the challengers’ claims, suggested nonetheless that, for the administration, the lack of precedent was a concern. “Can you point to any place in the code – or any other time in history – where that phrase, together ‘regulate importation’ has been used to confer tariff imposing authority?” she asked US Solicitor General D. John Sauer, who was defending Trump’s actions.
Gorsuch sounded, overall, more skeptical of the administration position than Barrett and Roberts, based on his interest in keeping clear lines between congressional and presidential powers, under what’s known as the “nondelegation doctrine.” He suggested Congress could not delegate – that is, give up – its constitutional authority to levy tariffs to the executive branch.
“If that’s true,” Gorsuch said, “what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce – for that matter, to declare war – to the president?”
Still, maybe Gorsuch was more unsure than he sounded. Later in the hearing, Katyal, the challengers’ lawyer, remarked, “I agree with Justice Gorsuch,” as he claimed Congress never clearly conveyed sweeping tariff authority to the president in the IEEPA.
“Well,” Gorsuch said, as he was ready to begin another line of inquiry, “I don’t know if I agree with what you say I say, but at any rate … .”
