“Tariffs Are Taxes”

pic.twitter.com/Jk5AkXST02

— Chargé d’Affaires (@BrandiAtkinson) November 5, 2025

Gorsuch: Could the president impose a 50% tariff on gas powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?

Sauer: This admin would say it’s a hoax

Gorsuch: I’m sure you would pic.twitter.com/BfCvFpBfYQ

— Acyn (@Acyn) November 5, 2025

Gorsuch: What's the reason to accept the notion that congress can hand off the power to declare war to the president?

Sauer: Well, we don't contend that

Gorsuch: You do, you say it's unreviewable… pic.twitter.com/hLBnGgRMzp

— Acyn (@Acyn) November 5, 2025

Is Gorsuch on the side of the Constitution? Or is he trying to get Sauer to give him some ammunition?

I’ll wait and see what the opinion is. 

Neal Katyal's opening volley against Trump's tariffs: "May it please the court: Tariffs are taxes."*

Which is Sauer’s problem is, because the baloney doesn’t have just one side.

I just don't understand this argument," the justice explained. "It's a congressional power, not a presidential power to tax. And you wanna say tariffs are not taxes, but that's exactly what they are. Degenerating money from American citizens' revenue."

"I don't understand this argument, that it's equivalent, or that foreign powers, or even an emergency, can do away with the major questions doctrine," she continued.

Sauer countered by claiming Trump's power to enact tariffs was "a foreign-facing regulation of foreign commerce."

"So Biden could have declared a national emergency in global warming and then gotten his student forgiveness?" Sotomayor wondered.

"I don't think he could have gotten student loan forgiveness," Sauer replied.

"Why? It's foreign-facing, to tax fossil fuel or to do something else," the justice observed. "That's all Biden would have had to do with any of his programs?"

"The power to impose tariffs is a core application of the power to regulate foreign commerce," Sauer insisted.

And “Because, Biden” is not a legal argument. At least not one the Supreme Court can accept explicitly.

Professor Vladeck:

Prediction time: I did not hear five votes to uphold the tariffs. Arguments aren't always predictive, but I think it's at least 6-3 against, and maybe even 7-2.

From his lips to God’s ear. I consider predictions from oral arguments a mug’s game, but I accept the Professors’s as analytically sound.

UPDATE: Professor V may well be right. Gorsuch went harder than I thought:

In his line of questioning, Gorsuch points out that it would take a veto-proof supermajority for Congress to get its power back once it has been handed to the executive.

— Adam Klasfeld (@KlasfeldReports) November 5, 2025

And then there's this:

Quoting Barrett and Gorsuch, Katyal calls Trump's claimed power a "one-way ratchet" that no future president would relinquish.

"This is an open-ended power to junk the tariff laws."

— Adam Klasfeld (@KlasfeldReports) November 5, 2025

Kavanaugh says that IEEPA would allow Trump to shut down trade with other countries but not impose tariffs. He calls that the "donut hole" in their position. Oregon's SG Gutman replies tariffs are a tax, the other isn't.

"It's not a donut hole: It's an entirely different…

— Adam Klasfeld (@KlasfeldReports) November 5, 2025

*Please note that the power to control definitions is the power to control the argument. We’ll never know, but I suspect this will be the fulcrum of the argument in chambers over this decision, upon which the vote will pivot. The POTUS may have more authority over foreign affairs under this Court than is Constitutionally sound, but they have yet to give him the Art. I power to levy taxes in any and all circumstances.