Note from Elie 6/06: The Supreme Court Will Settle Trump’s Tariffs – But When, and How?
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Hey everyone, Ellie here, wishing you a happy Friday. Well, last week we picked up talking about the Trump administration's attacks on Harvard. And as we discussed last week, I think those attacks are patently illegal. They violate the First Amendment.

And I think the Trump administration will continue to lose in court. But just the other day, there was a new development. I don't know if I want to call it crafty, but it certainly is a pretty flagrant end run by the Trump administration. So a district court, a federal judge, had issued a ruling last week saying that Trump is not to suspend Harvard student visas for the time being while the case plays out. A win for Harvard.

over the Trump administration. Well, just a day or two ago, the Trump administration issued a new executive order saying, okay, but Harvard students are not allowed to enter the country. So essentially, it seems, I had to do a triple take on this, the Trump administration's position is, okay, maybe a court has said that we can't block them from getting visas, so we're just going to block them from coming into the country altogether. My prediction for this is the same as it's always been. Trump is wrong legally and will continue to

to lose in the courts, but he's certainly not going to go away without continuing to fight this. I do want to just take a moment to talk about someone I've never met, but I have increasing respect for. And this is the new president of Harvard, a guy named Alan Garber. You may have seen the scene last week at Harvard's graduation where he got up to speak and he was given a rousing minute-long standing ovation. I am really impressed by this person, by Alan Garber. You know, he's not

the sort of stereotypical Harvard president. I think a lot of us think of Lawrence Summers, right? The very self-assured, very sort of outspoken, even arrogant by some accounts. I don't know the guy, but he's certainly been described that way. Former president of Harvard. You'll remember him if you saw the movie, The Social Network. He's the guy, it's not him, but he's being portrayed. When the Winklevoss twins come in to complain to him, he basically tells them to screw off. But that's sort of consistent with his character. You'll see him pop up a lot.

on CNN and elsewhere on cable news. Alan Garber, though, the current president, is a sort of soft-spoken, understated guy. But boy, he has shown some real spine and resolve in leading Harvard through this in his understated but quite morally clear fashion. So kudos to

to you, President Alan Garber. Okay, on with this week's topics. We're gonna talk tariffs, big deal, and this is the court battle that is coming soon. Hope you enjoy. As always, send us your thoughts, questions, comments to lettersatcafe.com. ♪♪

When it comes to Donald Trump and the law, nothing could be more on point than the recent saga over his tariffs. Two losses, no concrete consequences yet, chaos ahead. The only near certainty is that the Supreme Court will settle this eventually. When and how they'll decide is anybody's guess, though we will try in a moment.

The first ruling came from the Court of International Trade. Don't be misled by the name. This is not some United Nations-like entity that makes pronouncements but lacks enforcement authority. This is a full-fledged, constitutionally authorized, statutorily created federal court that specializes in disputes over international trade, quote, taxes, duties, imposts, and excises, as the Constitution puts it.

Last week, in a lawsuit brought by a conglomerate of states and trade groups, a three-judge panel unanimously held Trump's tariffs invalid. The ruling struck down the tariffs announced on the president's first day in office against Mexico, Canada, and China, and the worldwide tariffs unveiled on so-called Liberation Day, April 2nd, 2025. The court found that the International Emergency Economic Powers Act,

of 1977, sometimes called AEPA, did not properly authorize Trump's tariffs. Now, through that law, Congress empowered the president to regulate foreign commerce to protect against any, quote, unusual and extraordinary threat with respect to which a national emergency has been declared.

The court ruled first that the judiciary does have a role in reviewing the president's determination that an emergency exists. And second, that Trump's tariffs do not address sufficiently unusual and extraordinary economic threats to the United States. Regular listeners will recall that we recently diagnosed precisely this self-defeating tendency by the Trump administration to make hyperbolic declarations.

about emergencies and invasions and the like. Indeed, not everything is a full-blown emergency. The three judges who ruled against Trump had been appointed to the federal bench by Presidents Reagan, Obama, and Bush.

and Trump himself during his first term. Trump accordingly lashed out against the Federalist Society, which has recommended many of Trump's conservative judicial nominees and its founder, Leonard Leo, a quote, sleazebag and a quote, bad person, according to the president.

Trump's outburst was nonsensical. The Federalist Society has been a potent ally of his and has helped him reshape the courts to his advantage. And as David Latt notes in his insightful judicial notice newsletter, the Trump nominee on the tariff case, a guy named Timothy Reif, is a Democrat, and Leo likely had nothing to do with his appointment.

Less than 24 hours after that ruling, however, the Court of Appeals for the Federal Circuit, which sits above the Court of International Trade, put it on temporary hold. The appeals court did not address the merits, whether the tariffs are legal, but it did suspend the lower court's ruling pending the ultimate outcome of the appeal. So for now, Trump's tariffs, though adjudged illegal, are back on as the appeals court does its work.

Virtually simultaneously, another federal district court judge, this one in Washington, D.C., struck down the Trump tariffs in a separate lawsuit brought by U.S.-based toy companies that import products from Asia. That judge, Rudolph Contreras, an Obama nominee, concluded that while the emergency powers law does confer certain economic powers on the president, it does not empower him to impose tariffs arbitrarily.

at all. Judge Contreras paused his own ruling, stayed it in the lingo, for 14 days. We're smack in the middle of that period now to allow the Court of Appeals to weigh in. These tariff cases are destined for the Supreme Court. While the justices accept only a minuscule fraction of all matters presented to them, the tariff cases feature both factors that tend to draw the court's involvement. First, they involve major issues of national and international consequence. And second, there's an abiding need for uniformity and finality.

So when will the court rule? Well, in its current procedural posture, the primary tariff case is on a fast track. Briefs are due to the Federal Circuit Court of Appeals next week, and the case should reach the Supreme Court for emergency consideration of a temporary pause, probably

by the end of June or early July. The underlying merits argument will take months, if not years, so the court's emergency ruling will likely determine the issue for the foreseeable future. Until then, markets, investors, and foreign countries will remain on perilously unstable footing.

If and when the court takes up the tariff cases, we can safely place five of the nine votes. Justices Clarence Thomas and Samuel Alito, they'll back Trump. And the three liberal justices, Elena Kagan, Sonia Sotomayor, and Kataji Brown Jackson, they'll oppose the tariffs.

The question then will be whether two of the remaining four, Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, will join the liberals in opposition. On one hand, conservatives generally favor broad executive branch power and tend to eschew judicial second-guessing of the duly elected chief executive, even if the justices don't correct

quite see the international economic status quo as a dire emergency, conservatives typically defer to the president on foreign affairs, barring an outlandish abuse of discretion. On the other hand, Trump's position is a stretch. How is it suddenly an economic emergency to run foreign trade deficits, which aren't necessarily bad for our economy and which we've had for over 40 years running?

And under something called the major questions doctrine, often embraced by conservatives during recent Supreme Court terms, a sweeping measure like worldwide tariffs would require specific congressional authorization rather than the broad delegation of power in the IEPA, in the International Economic Emergency Powers Act.

Roberts, Barrett, and Kavanaugh have also shown more willingness to reject the administration's positions than commonly recognized. In fact, Trump reportedly is fuming behind the scenes at all three of his appointed justices, especially Amy Coney Barrett.

And Roberts, as the chief justice, has strained to avoid dreaded six to three outcomes on cases that could reshape the American political landscape. On balance, if I had to guess, and mine is as good as yours or anyone else's, I'd lean ever so slightly towards the court striking down the tariffs.

Trump stands to win either way. He might actually win in court, of course, in which case his tariffs stand, which might perversely be a long-term political setback for the president and an economic loss for the country. Or Trump might lose, which some conservatives and experts have posited would actually rescue the president from his own act of economic self-sabotage. If the courts do ultimately strike down the tariffs,

Count on Trump to blame every subsequent economic failure on the courts for time immemorial. None of this would have happened if those lame-brained activist judges had let me impose my beautiful, strong tariffs.

Once again, Trump's aggressive scattershot use of executive power has pushed us into new constitutional territory, and only the Supreme Court can resolve the inconclusive mess in the lower courts. We've rarely seen a case of quite this import and volatility, even during the Trump era. The stakes are global, the timing is urgent, and the outcome is genuinely in doubt. Thanks for listening, everyone. Stay safe and stay informed.

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