Supreme Court decision expected Wednesday, Trump tariffs' fate hinges on three justices he appointed.

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The U.S. Supreme Court will hear the Trump global tariffs case on Wednesday local time, and the three justices he appointed—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—will play a key role in the decision.

According to a previous article by Wallstreetcn, in what Trump calls "the most important case in history", the ruling will not only determine the fate of this signature policy, but could also trigger hundreds of billions of dollars in refunds. The case will decide the fate of most import tariffs imposed since Trump took office, which Trump claims were authorized by the 1977 International Emergency Economic Powers Act, although that law does not explicitly authorize the imposition of tariffs.

For some time, U.S. government tariff policy has been mired in several domestic legal challenges. Previously, according to CCTV News, on May 28 local time, a U.S. federal court blocked the tariff policy announced by President Trump on "Liberation Day" April 2 and ruled that Trump had exceeded his authority in imposing comprehensive tariffs on countries exporting more than they import to the United States. The lawsuit was brought by the public-interest, nonpartisan group Center for Liberty and Justice on behalf of five American small businesses affected by the tariffs—marking the first major legal challenge to Trump's tariff policy.

Since the Supreme Court now has a 6-3 majority of justices appointed by Republicans, this tariff case will, for the first time, directly examine Trump's fundamental claim of broad presidential authority. It is noteworthy that all three Trump-appointed justices have, to varying degrees, suggested that when a president seeks unprecedented tariff powers in response to a national emergency, they are not necessarily inclined to side with him.

The companies and states challenging the tariffs may need support from at least two of the chief justice and the three Trump-appointed justices to prevail. According to media reports, the court's three liberal justices are expected to vote against Trump, while conservative justices Clarence Thomas and Samuel Alito usually support Trump.

Kavanaugh Most Likely to Support the Tariff Policy

According to observers familiar with the Supreme Court, among the three Trump-appointed justices, Kavanaugh is most likely to support his tariff policy. His position on this case contrasts with his past role, as in other cases he has usually joined Barrett or Chief Justice Roberts in restraining their more conservative colleagues.

Kavanaugh is a staunch supporter of presidential authority, especially in interpreting laws involving other matters or national security. This June, in a case involving the Federal Communications Commission, he wrote:

"The usual understanding is that Congress grants the president broad power and flexibility to protect America and the American people."

Kavanaugh made the above remarks when discussing the "major questions doctrine," which could play a central role in the tariff case. According to this doctrine, federal agencies must obtain clear congressional authorization to take actions of broad economic or political significance. Kavanaugh has stated,

"The doctrine has not yet been applied by this Court in the context of national security or foreign policy, because it does not reflect Congress's usual position in those areas."

The best hope for the challengers may be that Kavanaugh views the tariff case as a question of Congress's constitutional power to levy tariffs and taxes, not presidential tariff and national security powers. Even so, opponents may find it hard to persuade Kavanaugh. Biden administration solicitor general and California Cooley appellate lawyer Elizabeth Prelogar said: "He may not be easily swayed by plaintiffs challenging the tariffs."

Gorsuch's Position Is More Uncertain

By contrast, Gorsuch may not be as solid a supporter of Trump as in other cases. As a strict legal textualist, Gorsuch is likely to question Trump’s citing of a law that does not clearly mention tariffs or taxation. The provision in the law most related to the power to tax merely allows the president to "regulate" the "import" of goods in an emergency.

Gorsuch is a staunch proponent of the "major questions doctrine" and "non-delegation doctrine", the latter of which limits Congress's ability to delegate its constitutional legislative and taxing powers. In the FCC case, he said the non-delegation doctrine is particularly important as a check on Congress's ability to cede domestic taxing authority.

According to former Biden administration deputy solicitor general Elizabeth Prelogar, Gorsuch is more likely than Kavanaugh to vote against Trump's tariffs.

Barrett: A Pragmatic Textualist

Barrett is also a judge who places great weight on statutory text, using a milder version of the "major questions doctrine" than some colleagues and describing it as a "common sense" tool for determining how much power Congress has delegated.

In 2023, Barrett wrote that since the Constitution grants all legislative power to Congress, "a rational interpreter would expect it to make major policy decisions itself, rather than pushing them off to another branch."

It is conceivable that Barrett will vote to block Trump’s tariffs, viewing them as a major policy decision not authorized by Congress. However, her opinion does not mention taxation or tariffs, nor does it indicate whether foreign policy or national security implications would affect her analysis.

Roberts Concerned with Practical Consequences

Chief Justice Roberts often considers the court’s institutional role and practical effects more than legal dogma, unlike the justices appointed by Trump. In 2012, he cast the deciding vote to uphold Obama’s Affordable Care Act, even when he disagreed with Obama on key legal questions.

According to former Obama deputy solicitor general Donald Verrilli:

"The justices who will decide this case will feel that, before directly confronting the president, they need to have a particularly strong argument on the legal merits."

People's Daily Overseas Edition pointed out that this judicial showdown over the Trump administration’s "tariff power" is "not just a trade policy dispute, but a test of the boundaries of presidential powers under the U.S. Constitution."

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