LISTEN LIVE: The Supreme Court will hear the Trump tariffs case in a key test of presidential power

WASHINGTON (AP) — A key question hangs over the closely watched Supreme Court case over President Donald Trump’s far-reaching tariffs: Will the conservative majority hold the Republican president to the same strict standards it used to limit his Democratic predecessor, Joe Biden?

The Supreme Court will hear the tariff case at 10 a.m. ET on Wednesday. Listen in the player above.

The key legal principles at the heart of conservative challenges to major initiatives of the Biden years are driving the arguments in the fight against Trump’s tariffs, which are scheduled to be argued in the Supreme Court on Wednesday.

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Companies and states that have filed lawsuits over the tariffs are also name-checking the three conservative judges appointed by Trump whose votes they hope to stop the pivot of Trump’s economic agenda in a key test of presidential power.

Trump relied on the Emergency Powers Act to justify the tariffs

Trump imposed two sets of tariffs, ruling that the persistent trade deficit had brought the United States to the “brink of a national economic and security crisis,” and that the hundreds of thousands of deaths caused by imported fentanyl had created a crisis of its own, the administration told the justices.

Until this year, no president had used the International Emergency Economic Powers Act to impose tariffs since its passage in 1977.

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The law does not mention tariffs, taxes, customs duties, or other similar words, although it allows the president, after declaring a state of emergency, to regulate the importation of “any property in which any foreign state or one of its nationals has an interest.”

The administration claimed that this authorization was sufficient to support the definitions, and that the absence of any “magic words” was irrelevant.

The court ruled that Congress must speak clearly on key policy questions

During Biden’s presidency, the conservative majority has made it more difficult to combat climate change under existing law and blocked many actions related to the coronavirus pandemic.

The court ended a temporary moratorium on evictions, blocked vaccine authorization for large businesses and rejected Biden’s $500 billion student loan forgiveness program.

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In each case, the court held that Congress had not clearly authorized an action of economic or political importance, a legal principle known as the Big Questions Doctrine.

The US Court of Appeals for the Federal Circuit, based in Washington, had little difficulty applying those precedents to the tariff issue.

Referring to the eviction moratorium and student debt issues, the seven-justice majority wrote: “Indeed, the economic impact of the tariffs is expected to be far greater than the two programs previously approved by the Supreme Court to implicate major issues.”

The tariff challengers are defending the Supreme Court’s appeal decision by relying on opinions from prior cases.

“Absent vigilance under the key questions doctrine, the legislation risks becoming merely the will of the sitting president,” lawyers for a Chicago-area gaming company, Learning Resources Inc., wrote, citing Justice Neil Gorsuch’s opinion in the climate change case.

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A separate group of small businesses cited Justice Amy Coney Barrett’s opinion in the student loan case to make the point that Trump, in relying on IEEPA to impose the tariffs, is “asserting a power of great importance…beyond what we can reasonably understand Congress to have granted.”

The companies also cited a dissenting opinion by Justice Brett Kavanaugh in another pandemic case about the dangers of easily accepting emergency declarations. “The history of this Court is littered with deplorable examples of widespread judicial deference to assertions of ‘emergency powers,’” the corporate lawyers wrote.

But does the principle of big questions apply to the issue of definitions?

The Trump administration argues that this principle does not apply to the tariff case, and cites a lengthy dissenting appellate opinion, as well as the Kavanaugh opinion.

Presidents have broad power when it comes to foreign affairs and national security, and it would be strange if the emergency powers law were as limited as competitors say it is, Justice Richard Taranto wrote in his dissent, which was joined by three other justices.

“Such a restriction would be particularly misplaced in emergency law such as the ISA,” Taranto wrote, explaining that it is intended to give presidents the necessary flexibility to deal with crises.

He concluded that Congress had made an “open-ended” choice to grant the president broad power. Taranto wrote that the Great Questions principle does not apply.

Kavanaugh expressed a similarly expansive view of presidential power in his June opinion on the power of Congress.

Kavanaugh wrote that the Big Questions doctrine has never been invoked in a foreign policy or national security case. “On the contrary, the usual understanding is that Congress intends to give the President significant power and flexibility to protect America and the American people,” he wrote.

Taranto’s opinion was drawn from a 1981 Supreme Court decision in a case related to the Iranian hostage crisis that upheld President Jimmy Carter’s activation of the Emergency Powers Act to unfreeze Iranian assets.

Justice William Rehnquist, five years before he became chief justice, wrote the court’s opinion. One of its clerks during that period was the current Chief Justice of the Supreme Court, John Roberts.