Supreme Court Justice Amy Coney Barrett speaks during a book launch event at the Ronald Reagan Presidential Library & Museum in Simi Valley on Sept. 9, 2025.

WASHINGTON − A Supreme Court that has been largely deferential to President Donald Trump’s expansive claims of executive authority may be ready to pump the brakes.

During nearly three hours of debate on Nov. 5, the justices questioned whether Trump has the power to impose sweeping tariffs on most imports.

Several legal experts said the justices' questions reveal a lot about where they stand on Trump's policy, which the president has said is about “literally LIFE OR DEATH for our country.”

Ashley Akers, a former Justice Department attorney now with the law firm Holland & Knight, heard a “notable skepticism from justices across the ideological spectrum.”

"Overall, it felt like a strong day for the tariff challengers, though it feels like this will be a razor-close case,” Akers said.

Several justices were concerned that if they sided with Trump, Congress would lose control over tariffs, even though the Constitution gives that power to lawmakers, said Curtis A. Bradley, an expert on foreign relations law at the University of Chicago Law School.

But Todd Tucker, a trade expert at the left-leaning Roosevelt Institute, noted that some justices seemed sympathetic to the administration’s argument that it would be odd if the law at issue didn’t allow presidents to issue any tariffs since it clearly lets presidents block imports.

Oliver Dunford, an attorney with the libertarian Pacific Legal Foundation, said the case is complicated enough and the concerns expressed by the justices sufficiently diverse that it’s possible the justices may arrive at their decision without a majority coalescing around one legal argument.

“If I had to guess,” Dunford said, “I’d guess that the court will rule against the president without agreeing on the reason."

Here are USA TODAY's top takeaways from the debate.

Trump lawyer: Tariffs weren't imposed to raise money

A key point in the arguments was whether tariffs are taxes.

The Constitution gives Congress sole authority to set taxes. But Solicitor General John Sauer called the more than $3.3 trillion that the tariffs are projected to generate for the government “an incidental and collateral effect of the tariffs.”

“I can’t say enough, it is a regulatory tariff, not a tax,” Sauer told Justice Elena Kagan, explaining that setting limits on imports encourages trade deals with other countries and spurs domestic manufacturing.

"There's been extremely broad delegations of the power to tariff specifically, and the power to regulate foreign commerce more generally, going back to the time of the founding,” Sauer told Justice Clarence Thomas at another point.

Trio of conservatives seem skeptical of president's power to impose tariffs

At least three of the six conservative justices – Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett – sounded skeptical of the Trump administration’s arguments.

A fourth, Justice Brett Kavanaugh, seemed to be laying out parameters for the questions he wanted answered. He said the justices “have to figure out then what ‘regulate importation’ means," in reference to the key phrase in the statute.

Roberts said the word “tariff” doesn’t appear in the 1977 International Emergency Economic Powers Act that Trump used to justify much of his tariff regime, but which had previously been used for sanctions. And Roberts explicitly said tariffs are a tax.

“And that has always been the core power of Congress,” he said, meaning that Congress has the power to levy taxes.

Gorsuch likewise focused on the fact that the Constitution designates Congress as the branch of government with the power to set taxes.

“The power to reach into the pockets of the American people is just different,” Gorsuch said. “And it’s been different since the founding.”

Trump's power is 'one-way ratchet,' Gorsuch says

Gorsuch and Barrett, who were both appointed by Trump, voiced concerns about Congress being unable to curb the president’s power to impose tariffs in the future if the court were to rule they were constitutional. These two justices noted a president could veto any legislation aimed at limiting executive power.

"It's a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives," Gorsuch said.

Barrett said Congress would need a two-thirds majority to overcome a presidential veto if it wanted to approve any future limits on emergency tariffs.

“If Congress said, `Whoa, we don’t like that, that gives a president too much authority under IEEPA,’ it’s going to have a very hard time pulling that tariff power out of IEEPA, correct?” Barrett asked.

Kavanaugh appears undecided on Trump tariffs

Kavanaugh, who is sometimes a swing vote in politically divisive cases, appeared undecided about Trump's tariffs.

Congress could have explicitly said in the 1977 law at stake in the case that the president's power to "regulate importation" didn't allow for tariffs. After all, legislators knew that President Richard Nixon invoked an earlier, similar law to impose temporary 10% tariffs in 1971, Kavanaugh said.

"Why didn't they say regulate, but not tariffs?" Kavanaugh asked Neal Katyal, a lawyer representing businesses opposed to the tariffs.

Katyal responded that Trump's actions were strikingly different from Nixon's. As an example, he said that Trump has imposed a 39% tariff on an ally, Switzerland, despite a U.S. trade surplus with the country.

"This president has torn up the entire tariff architecture," Katyal said. "That is just not something that any president has ever had the power to do in our history," Katyal added.

At another point, Kavanaugh suggested it would be strange for Congress to have given the president the power to shut down all trade through an embargo, but not allow the president to impose a 1% tariff on imports.

“That leaves, as the government said in its briefs, an odd donut hole in the statute,” Kavanaugh said.

But Oregon Solicitor General Benjamin Gutman told the court the tariffs are fundamentally different from embargoes.

“It’s not a donut hole, it’s a different kind of pastry,” Gutman said to laughter in the courtroom, which Kavanaugh complimented as “a good one.”

Kavanaugh also noted that Trump imposed a tariff on India to discourage it from buying Russian oil, to apply pressure to end the war between Russia and Ukraine. If the high court overturns the tariffs, Kavanaugh said, that's "out the window."

Gutman noted there are other laws Trump could turn to instead for that kind of action.

Liberal Justices Sotomayor, Kagan and Jackson clearly oppose tariffs

The three liberal justices – Sonia Sotomayor, Kagan and Ketanji Brown Jackson – were clearly opposed to upholding Trump’s power to impose emergency tariffs.

“Crucially, what it doesn’t have here is anything that refers to raising revenue,” Kagan told Sauer of the disputed statute. “It has a lot of verbs, it has actions that can be taken under the statute, it just doesn’t have the one you want.”

Kagan asked why presidents would ever use any other statutes if Trump is right that the emergency law allows him to “blow past those limits.” She noted that the administration argues that courts can’t review any of Trump's emergency declarations.

“So that doesn’t seem like much of a constraint,” she said.

Sotomayor questioned whether Congress would have granted a president such wide-ranging power as tariffs without explicitly saying so in the disputed statute.

She noted that Trump threatened a 10% tariff on Canada for running an ad during the World Series and a 40% tariff on Brazil because it prosecuted a former president.

“The point is, those may be good policies, but does a statute that gives without limit the power to a president to impose this kind of tax – does it require more than the word 'regulate'?” Sotomayor asked Gutman, Oregon's solicitor general, who represented states opposed to the tariffs.

“Exactly,” Gutman replied.

Jackson asked whether anything in the legislative history of the statute called for tariffs.

Katyal said he would have missed a single mention “if I blinked.” But Katyal argued that lawmakers would never have granted the president the power to impose tariffs, one of the most contentious issues in the country’s history, by voice vote if tariffs were at stake.

“You’re saying there’s nothing in the legislative history?” Jackson asked.

“Zilch,” Katyal said.

The question of what amounts to a 'major question'

Roberts said Trump’s broad assertion of the power to set tariffs sounds like the kind of "major question" that the court has previously said needs to be clearly given to a president by Congress.

The so-called "major questions doctrine" is a legal principle for cases dealing with significant presidential actions. In those cases, the Supreme Court has said presidents can't use ambiguous statutes to say they have the power to act.

Sotomayor noted that the high court previously struck down a student loan forgiveness initiative from President Joe Biden that could have cleared away as much as $400 billion in student debt.

In that case, Roberts wrote on behalf of the six Republican-appointed justices that Congress hadn't clearly given Biden that power, and that Biden overstepped.

Sotomayor and the other two Democratic-appointed justices dissented. On Wednesday, she suggested that the Trump administration's use of emergency powers had parallels to what Biden did, only to advance a different agenda.

"So Biden could have declared a national emergency in global warming, and then gotten his student forgiveness to not be a 'major questions' doctrine?" Sotomayor asked.

Sauer argued that Biden couldn't have gotten his student loan forgiveness because it isn't a "core application" of the power to regulate foreign commerce, unlike tariffs.

Barrett says reimbursement will be 'a mess' if court overturns tariffs

Barrett asked how difficult it would be for the government to refund billions of dollars in tariffs already collected if the court rules they are illegal.

“Would it be a complete mess?” Barrett asked Katyal, the lawyer for the businesses challenging the tariffs.

Katyal said the government has said it would reimburse the specific businesses he’s representing. Other importers would have to rely on complicated rules set in trade laws to get refunds.

“So, a mess,” Barrett said.

Katyal responded that even if reimbursements would be difficult, that’s not a reason for the court to side with the administration. He added that the court could simply strike down the tariffs going forward.

This article originally appeared on USA TODAY: Justices question Trump tariffs as Supreme Court weighs keeping them: Top takeaways

Reporting by Maureen Groppe, Bart Jansen and Aysha Bagchi, USA TODAY / USA TODAY

USA TODAY Network via Reuters Connect