On the SCOTUS Tariff Oral Arguments

We think all three liberals will vote to strike down the tariffs, based on their hard questioning of the government’s attorney and their softballs to the respondents’ attorneys. Thomas, Gorsuch and Roberts asked deep questions going to the “major questions doctrine” and the “non-delegation doctrine.” Kavanaugh was stuck on the use of tariffs as a negotiating tool, and seemed to think their utility was more important than their lawfulness. Alito was stuck on the greater powers under IEEPA, such as total embargo, believing that those necessarily permitted lesser powers such as tariffs. They key is the matter Sotomayor raised at the beginning – tariffs are taxes, and taxes are a unique power of Congress, not the president. This power can only be delegated under narrow circumstances, and the president’s interpretation of IEEPA seems too broad. Roberts famously hung his ACA ruling on the technical fact that the mandate was administered as a tax. This will be the fulcrum issue. Refunds were only mentioned once, by Barrett. We think the tariffs will get struck down 7-to-2.