Attorney Victoria Toensing, a former senior Justice Department official, said Solicitor General D. John Sauer presented the stronger argument Wednesday in the Supreme Court case over presidential tariff powers, though she doubted the justices would agree.
“Well, I did listen to the arguments, and I thought that the better side was made by the solicitor general,” Toensing told Newsmax’s “The Chris Salcedo Show” Wednesday.
“But I don’t think that a majority of the Supreme Court thought that. There’s a certain irony here about tariffs.”
Three conservative justices Wednesday raised questions about whether an emergency law gives President Donald Trump near-limitless power to set and change duties on imports, with potentially trillion-dollar implications for the global economy.
The court’s three liberal justices also appeared dubious, so at least two conservative votes could limit Trump’s tariff power under the law. It likely would not end it altogether, however.
The Constitution says Congress has the power to levy tariffs. But the Trump administration argues that an emergency law allowing the president to regulate importation also includes imposing tariffs.
Lopsided trade deals are a “global problem,” Sauer said, and Trump’s tariffs are primarily about regulating foreign commerce to be fairer, rather than raising money that would encroach on Congress’ taxation power.
“The fact that they raise revenue is only incidental,” he said.
Toensing said Congress has long held constitutional authority over both taxation and tariffs, but history shows how those powers have shifted over time.
“Congress has tax authority and tariff authority,” she said. “Now, they messed it up during the Depression with a law called the Smoot-Hawley [Tariff] Act.
“And then they authorized protectionist tariffs in the middle of the Depression, which caused a big national trade war and was, I think, one of the reasons FDR [Franklin D. Roosevelt] was elected.”
The Smoot-Hawley Tariff Act of 1930 drastically raised tariffs on over 20,000 imported goods to protect American farmers and manufacturers during the Great Depression.
When Roosevelt took office in 1933, Congress began transferring certain tariff powers to the executive branch, allowing the president to negotiate and adjust trade barriers.
Those delegations, Toensing said, have created the gray area the court is now examining.
“The question here, of course, was whether this was something Congress ever really delegated to the president,” she said.
The Supreme Court’s decision could have wide-ranging implications for U.S. trade policy, particularly as global markets face renewed tensions and shifting alliances.
Presidents from both parties have used delegated authority to impose or lift tariffs on imports from steel to semiconductors.
Toensing said that while Sauer’s presentation was clear and grounded in precedent, the court’s conservative majority may still favor a stricter reading of the Constitution that reins in presidential discretion.
Newsmax wires contributed to this report.
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