Liza Goitein
@lizagoitein.bsky.social
Senior Director of the Liberty and National Security Program at the Brennan Center for Justice, reformed oboist and whitewater kayaker, mom of teenage twins. Opinions are my own.
In short, it’s hard to imagine a case with greater stakes at a time when the president is relying heavily on emergency powers to evade legal constraints on his actions. The hard questions justices posed to the administration today provide some reason for hope. 25/25
November 5, 2025 at 9:04 PM
In short, it’s hard to imagine a case with greater stakes at a time when the president is relying heavily on emergency powers to evade legal constraints on his actions. The hard questions justices posed to the administration today provide some reason for hope. 25/25
On the other hand, to uphold the tariffs, the Court would have to uphold Trump’s finding of an “emergency” and “unusual and extraordinary threat.” The level of deference required to endorse such a fiction would greenlight the abuse of dozens of other emergency powers. 24/25
November 5, 2025 at 9:04 PM
On the other hand, to uphold the tariffs, the Court would have to uphold Trump’s finding of an “emergency” and “unusual and extraordinary threat.” The level of deference required to endorse such a fiction would greenlight the abuse of dozens of other emergency powers. 24/25
Going forward, presidents would be sharply limited in their ability to exploit ambiguity in emergency powers—even those emergency powers that touch on foreign affairs—to take actions not authorized by Congress. 23/25
November 5, 2025 at 9:04 PM
Going forward, presidents would be sharply limited in their ability to exploit ambiguity in emergency powers—even those emergency powers that touch on foreign affairs—to take actions not authorized by Congress. 23/25
If the Court rules that IEEPA doesn’t cover tariffs, it will likely rely on the major questions doctrine. And applying that doctrine to IEEPA would set a critical precedent. 22/25
November 5, 2025 at 9:04 PM
If the Court rules that IEEPA doesn’t cover tariffs, it will likely rely on the major questions doctrine. And applying that doctrine to IEEPA would set a critical precedent. 22/25
Finally, although none of the justices focused significantly on whether a real emergency exists here, Barrett expressed doubt that tariffs against every country, including friendly nations like Spain and France, can be a response to an “unusual and extraordinary threat.” 21/25
November 5, 2025 at 9:04 PM
Finally, although none of the justices focused significantly on whether a real emergency exists here, Barrett expressed doubt that tariffs against every country, including friendly nations like Spain and France, can be a response to an “unusual and extraordinary threat.” 21/25
…and today, if Congress wants to rein in an abuse of emergency powers, it has to pass a law by a veto-proof supermajority. Gorsuch, Barrett, & Kagan made clear that they didn’t see this as a real constraint. Kagan pointed out that we’re in states of emergency all the time. 20/25
November 5, 2025 at 9:04 PM
…and today, if Congress wants to rein in an abuse of emergency powers, it has to pass a law by a veto-proof supermajority. Gorsuch, Barrett, & Kagan made clear that they didn’t see this as a real constraint. Kagan pointed out that we’re in states of emergency all the time. 20/25
Similarly, justices probed the administration’s claim that presidents who impose tariffs under IEEPA are still subject to congressional oversight and control. The Supreme Court in 1983 overturned Congress’s primary means of control, the “legislative veto”… 19/25
November 5, 2025 at 9:04 PM
Similarly, justices probed the administration’s claim that presidents who impose tariffs under IEEPA are still subject to congressional oversight and control. The Supreme Court in 1983 overturned Congress’s primary means of control, the “legislative veto”… 19/25
Moreover, as Katyal (and the @brennancenter.org!) emphasized, Congress must speak with even *more* precision in emergency powers because emergency powers “beget emergencies” (a paraphrase of Justice Robert Jackson’s language in the famous 1952 steel seizure case). 18/25
November 5, 2025 at 9:04 PM
Moreover, as Katyal (and the @brennancenter.org!) emphasized, Congress must speak with even *more* precision in emergency powers because emergency powers “beget emergencies” (a paraphrase of Justice Robert Jackson’s language in the famous 1952 steel seizure case). 18/25
…but Justice Jackson and plaintiffs’ attorney Neal Katyal, echoing the @brennancenter.org’s arguments in our amicus brief, observed that the *opposite* is true. IEEPA was enacted to rein in presidential emergency powers, not to expand them. 17/25 www.brennancenter.org/media/14586/...
www.brennancenter.org
November 5, 2025 at 9:04 PM
…but Justice Jackson and plaintiffs’ attorney Neal Katyal, echoing the @brennancenter.org’s arguments in our amicus brief, observed that the *opposite* is true. IEEPA was enacted to rein in presidential emergency powers, not to expand them. 17/25 www.brennancenter.org/media/14586/...
There was little discussion of whether an actual emergency exists, yet questions about the nature of emergency powers permeated the argument in various ways. The administration argued that emergency powers should be read broadly, not narrowly… 16/25
November 5, 2025 at 9:04 PM
There was little discussion of whether an actual emergency exists, yet questions about the nature of emergency powers permeated the argument in various ways. The administration argued that emergency powers should be read broadly, not narrowly… 16/25
All four of those justices also had tough questions for the plaintiffs’ lawyers, so it’s not 100% clear where any of them will land. (Justices Thomas & Kavanaugh seemed to be in camp Trump.) But they showed deep skepticism about some of the administration’s key arguments. 15/25
November 5, 2025 at 9:04 PM
All four of those justices also had tough questions for the plaintiffs’ lawyers, so it’s not 100% clear where any of them will land. (Justices Thomas & Kavanaugh seemed to be in camp Trump.) But they showed deep skepticism about some of the administration’s key arguments. 15/25
Justice Alito poked holes in the administration’s reliance on Yoshida, a 1970s case in which a court upheld Nixon’s tariffs under IEEPA’s predecessor law. Alito pointed out that the court explicitly said similar tariffs in the future must be imposed under a specific tariff law. 14/25
November 5, 2025 at 9:04 PM
Justice Alito poked holes in the administration’s reliance on Yoshida, a 1970s case in which a court upheld Nixon’s tariffs under IEEPA’s predecessor law. Alito pointed out that the court explicitly said similar tariffs in the future must be imposed under a specific tariff law. 14/25
Justice Gorsuch was overtly skeptical of the administration’s argument that Congress can constitutionally delegate away its powers in the foreign affairs context. He used Congress’s power to declare war as an example of something that clearly can’t be delegated. 13/25
November 5, 2025 at 9:04 PM
Justice Gorsuch was overtly skeptical of the administration’s argument that Congress can constitutionally delegate away its powers in the foreign affairs context. He used Congress’s power to declare war as an example of something that clearly can’t be delegated. 13/25
Justice Barrett highlighted that no other statute uses the word “regulate” to authorize tariffs, and she made clear that she considers some of the case law the administration is relying on to be inapplicable. 12/25
November 5, 2025 at 9:04 PM
Justice Barrett highlighted that no other statute uses the word “regulate” to authorize tariffs, and she made clear that she considers some of the case law the administration is relying on to be inapplicable. 12/25
Not so. Justice Roberts pushed back on the argument that the major questions doctrine has little force in the foreign affairs context, where the president has inherent powers. Roberts noted that tariffs are borne by Americans and the tariff power belongs solely to Congress. 11/25
November 5, 2025 at 9:04 PM
Not so. Justice Roberts pushed back on the argument that the major questions doctrine has little force in the foreign affairs context, where the president has inherent powers. Roberts noted that tariffs are borne by Americans and the tariff power belongs solely to Congress. 11/25
To date, the Supreme Court’s conservative majority has backed Trump in almost every case, even when lower courts found his actions flagrantly illegal. And tariffs are Trump’s signature policy. So one might have assumed the argument would go smoothly for the administration. 10/25
November 5, 2025 at 9:04 PM
To date, the Supreme Court’s conservative majority has backed Trump in almost every case, even when lower courts found his actions flagrantly illegal. And tariffs are Trump’s signature policy. So one might have assumed the argument would go smoothly for the administration. 10/25
One court went further and held that if IEEPA were read to give POTUS complete discretion to impose tariffs simply by using the words “national emergency,” it would be an unconstitutional delegation of the tariff power, which the Constitution gives solely to Congress. 9/25
November 5, 2025 at 9:04 PM
One court went further and held that if IEEPA were read to give POTUS complete discretion to impose tariffs simply by using the words “national emergency,” it would be an unconstitutional delegation of the tariff power, which the Constitution gives solely to Congress. 9/25
The lower courts held that interpreting IEEPA to authorize tariffs would violate the major questions doctrine, which holds that executive actions with major economic or political significance must be clearly authorized by Congress, not merely implied. 8/25
November 5, 2025 at 9:04 PM
The lower courts held that interpreting IEEPA to authorize tariffs would violate the major questions doctrine, which holds that executive actions with major economic or political significance must be clearly authorized by Congress, not merely implied. 8/25
Three lower courts struck down the tariffs, all on the ground that IEEPA doesn’t authorize them. Although the president can “regulate” importation under IEEPA, Congress often uses the term “regulate,” and in no other context is it understood to authorize tariffs. 7/25
November 5, 2025 at 9:04 PM
Three lower courts struck down the tariffs, all on the ground that IEEPA doesn’t authorize them. Although the president can “regulate” importation under IEEPA, Congress often uses the term “regulate,” and in no other context is it understood to authorize tariffs. 7/25
Several companies and states impacted by the tariffs filed suit, arguing that longstanding trade relationships are neither an “emergency” nor an “unusual and extraordinary threat,” and that tariffs are not among the economic actions authorized by IEEPA. 6/25
November 5, 2025 at 9:04 PM
Several companies and states impacted by the tariffs filed suit, arguing that longstanding trade relationships are neither an “emergency” nor an “unusual and extraordinary threat,” and that tariffs are not among the economic actions authorized by IEEPA. 6/25
…a law that permits the president to take specified economic actions in a national emergency to deal with “an unusual and extraordinary threat” to the U.S. national security, economy, or foreign policy. He used IEEPA to impose tariffs on nearly every country in the world. 5/25
November 5, 2025 at 9:04 PM
…a law that permits the president to take specified economic actions in a national emergency to deal with “an unusual and extraordinary threat” to the U.S. national security, economy, or foreign policy. He used IEEPA to impose tariffs on nearly every country in the world. 5/25
Trump imposed the tariffs by declaring that our decades-long trade relationships with the rest of the world constitute a national emergency. He then invoked the International Emergency Economic Powers Act (IEEPA)… 4/25
November 5, 2025 at 9:04 PM
Trump imposed the tariffs by declaring that our decades-long trade relationships with the rest of the world constitute a national emergency. He then invoked the International Emergency Economic Powers Act (IEEPA)… 4/25
I discussed the stakes of the case and the various arguments before the Court in a recent @brennancenter.org explainer. The rest of this thread might make more sense if you read that first… but will briefly summarize here. 3/25 www.brennancenter.org/our-work/ana...
What’s at Stake in the Supreme Court Tariffs Case
If the Court blesses the president’s use of emergency powers to evade Congress, the consequences would be profound.
www.brennancenter.org
November 5, 2025 at 9:04 PM
I discussed the stakes of the case and the various arguments before the Court in a recent @brennancenter.org explainer. The rest of this thread might make more sense if you read that first… but will briefly summarize here. 3/25 www.brennancenter.org/our-work/ana...
Spoiler alert: some conservative justices had tough questions for both sides, making it hard to say with certainty where they’ll land. But given the degree of pushback on key administration arguments, it’s looking quite possible—if not likely—the tariffs will be struck down. 2/25
November 5, 2025 at 9:04 PM
Spoiler alert: some conservative justices had tough questions for both sides, making it hard to say with certainty where they’ll land. But given the degree of pushback on key administration arguments, it’s looking quite possible—if not likely—the tariffs will be struck down. 2/25