Welcome back to SCOTUS Oral arguments and opinions.

Today we're diving into two of the most significant cases this term, cases that could reshape presidential power over trade and tariffs.

Please note that this podcast is read by an automated voice, but created by a very human lawyer who reads the briefs and opinions so you don't have to.

Things are slowly starting to ramp up on One First Street Last week, the Supreme Court allowed presidential actions to proceed as litigation ensued.

Also, the Supreme Court set their oral argument schedule for October and November.

I'll cover these cases as oral arguments get closer.

The biggest action took place yesterday, which is the subject of today's episode.

On September 9, the Supreme Court granted certiorari in the Trump tariffs cases.

The blockbuster cases are called Trump vs. Vos selections and learning resources vs. Trump.

The court expedited these cases and consolidated them for argument in the first week of November 2025.

It's obvious what makes these cases so explosive.

At their core, they ask whether the President can impose sweeping tariffs on imports using a 1977 emergency powers law called the International Emergency Economic Powers act, or ieepa.

The stakes couldn't be higher.

We're talking about the power to tax trillions of dollars in trade and fundamentally alter the American economy.

We're all well aware of what sparked this legal firestorm.

Earlier this year, President Trump issued a series of executive orders imposing what the Federal Circuit called two types of tariffs.

First, the reciprocal tariffs, a 10% tariff on imports from virtually every trading partner with higher rates for 57 specific countries.

The President characterized these as addressing large and persistent trade deficits.

Second, the trafficking tariffs levies on Mexico, Canada, and China to combat drug smuggling and other criminal activity.

The President relied on IEEPA as the source of authority for both sets of tariffs.

Now, here's what's fascinating about this legal framework.

IEEPA was enacted in 1977 as an emergency powers statute.

The law allows the President, during a declared national emergency, to regulate the importation or exportation of property in which foreign countries have an interest.

The key word here is regulate, and that single word is at the heart of this entire legal battle.

The fundamental question before the Court is deceptively, does the word regulate in IEEPA include the power to impose tariffs?

This might sound like academic hair splitting, but it's actually about one of the most basic principles in American government, the separation of powers.

The Constitution gives Congress the exclusive power to lay and collect taxes, duties, imposts and excises.

That's in Article 1, Section 8, Clause 1 separately, in Clause 3, Congress gets the power to regulate commerce with foreign nations.

The Constitution's framers wrote these as separate powers for a reason.

As one brief puts it, they were wary of executive use of taxation.

Given the history of colonial resistance to Crown imposed duties levied without consent.

Think about it.

The Boston Tea Party wasn't about regulation.

It was about taxation without representation.

That's quite a mouthful.

But look at what the statute does say.

It includes the word regulate alongside much more expansive powers like prevent or prohibit any acquisition, holding or importation.

The government argues that regulate is actually a lesser included power within this broader grant of authority.

If the President can completely prevent or prohibit importation, surely the President can take the less drastic step of imposing tariffs to control or limit imports.

Now notice what's missing.

Nowhere does IEEPA use the words tariff, duty, tax, or any similar term.

The government's entire case rests on squeezing tariff authority out of that single word, regulate.

The challengers argue that when Congress wants to grant tariff power, Congress knows exactly how to do it.

Congress has done so explicitly throughout Title 19 of the US Code, which governs customs duties using unmistakable language like impose duties or levy tariffs.

What's remarkable about these cases is how they raced through the courts.

Multiple lawsuits were filed almost immediately after the tariff orders were issued.

Some went to federal district courts, others to the specialized Court of International Trade, which normally handles tariff disputes.

The district court, in Learning Resources vs Trump, ruled that IEEPA doesn't authorize tariffs at all.

Meanwhile, the Court of International Trade in the VOS Selections case took a more nuanced approach, saying IEEPA might authorize some tariffs, but not these particular ones because they were too broad and unlimited.

Then came the Federal Circuit's decision in August 2025.

The court, sitting en banc, meaning all the judges participated, struck down the tariffs.

But here's where it gets interesting.

The majority said IEEPA doesn't authorize these specific tariffs because they're too sweeping and unlimited.

A concurring group of judges went further, saying IEEPA doesn't authorize any tariffs whatsoever.

Judge Taranto wrote a lengthy dissent that would become central to the government's Supreme Court argument.

Judge Taranto argued that IEEPA's plaintext does authorize tariffs and that the majority essentially rewrote the statute.

Taranto emphasized that regulate importation naturally includes the power to impose tariffs, pointing to dictionary definitions and arguing that tariffs are simply a less extreme tool than the outright prohibitions.

IEEPA clearly allows the Federal Circuit state its decision pending supreme court review so the tariffs remain in effect.

While this litigation plays out, let's break down what each side argued in their cert petitions.

The government's brief, signed by Solicitor General D. John Sauer, makes several key arguments.

First, on the text of ieepa, the government argues that the ordinary meaning of regulate clearly includes the power to impose tariffs.

The government cites Black's Law Dictionary defining regulate as to fix, establish, or control to adjust by rule, method, or established mode.

The government's position is straightforward.

Imposing tariffs is obviously a way of controlling imports and subjecting them to governing principles or laws.

After looking at the text, the government offered historical support.

The government points to Chief Justice Marshall's 1824 opinion in Gibbons v. Ogden, where Marshall wrote that the right to regulate commerce even by the imposition of duties, was not controverted by the Constitution's framers.

The government argues this shows that from the very beginning American law has understood regulation and taxation as overlapping powers.

The government also leans heavily on a 1976 Supreme Court case, Federal Energy Administration vers.

Algonquin sn.

G. In that case, the Court interpreted statutory language authorizing the President to adjust the imports of oil to include not just quotas but also license fees, essentially monetary charges.

The government argues that if adjust imports includes fees, then regulate importation must certainly include tariffs.

The government also pins their historical argument on a 1975 case called United States vs Yoshida International.

This case involved President Nixon's 1971 import surcharge, a 10% tariff on imported goods during an economic crisis.

The Court of Customs and Patent Appeals ruled that the Trading with the Enemy act, which used language virtually identical to IEEPA, authorized that surcharge.

Here's the Congress enacted IEEPA in 1977 after the Yoshida decision and borrowed the exact same regulate importation language from the Trading with the Enemy Act.

The government argues this shows Congress knew courts had interpreted that language to include tariffs and chose to adopt that interpretation.

The government also emphasizes the national security context.

Cabinet members submitted declarations stating that these tariffs are among the country's top foreign policy priorities and that invalidating them would cause dangerous diplomatic embarrassment and expose the United States to the risk of retaliation.

Vos selections representing the private importers fires back with constitutional and textual arguments that cut to the heart of separation of powers.

They argue that the Constitution separates the power to tax from the power to regulate into different clauses for a reason.

Vos points to Gibbons v. Ogden, the same case the government cites but focuses on different language.

Chief Justice Marshall described the taxing and commerce powers as entirely distinct from each other and substantive and distinct.

Vos argues that when Congress wants to grant both regulatory and taxation authority, Congress does so explicitly and separately.

The brief points to examples like the securities Exchange act, where Congress gave the SEC power to regulate certain transactions but never granted taxation authority based on that regulatory power.

What's particularly compelling is Vos's textual argument.

Using the principle of nauseitur associ, a word is known by the company it keeps.

IEEPA lists several investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit.

Vos argues that none of these other verbs involve raising revenue, so regulate shouldn't either.

Vos also raises a constitutional avoidance argument that's quite clever.

IEEPA grants power to regulate importation or exportation in the same clause, but the Constitution prohibits export taxes.

If regulate included taxation power, IEPA would be unconstitutional with respect to exports.

Vos argues courts should interpret regulate to avoid this constitutional problem on the Major Questions doctrine, a relatively new legal principle requiring clear congressional authorization for actions of vast economic and political significance, Vos argues these tariffs easily qualify the government estimates they could generate $4 trillion in revenue, affecting 14% of the U.S. economy.

Vos calls IEEPA's bear word regulate a wafer thin reed on which to rest such sweeping power.

Learning Resources the educational toy company takes an even more aggressive approach, arguing that IEEPA authorizes no tariffs whatsoever.

The company's textual argument focuses relentlessly on the meaning of regulate versus tariff.

Learning Resources notes that to regulate means to control by rule or subject to restrictions, while to tariff means to impose duties or customs on imports or exports.

The company argues these are fundamentally different.

Regulation controls behavior while tariffs raise revenue.

LR challenges the government's reliance on Yoshida, calling it a 1975 decision from the CCPA interpreting the president's authority under TWEA that relied on now outdated reasoning.

The company argues that Yoshida was wrongly decided and that Congress's passing reference to it in IPA's legislative history doesn't constitute ratification.

LR relies heavily on historical practice.

The company notes that until now, no president has ever relied on a power to regulate importation to impose tariffs in IPA's nearly 50 year history.

This absence of historical practice, LR argues, weighs heavily against broad interpretation.

The company also makes a constitutional avoidance argument, pointing out that IEEPA covers both imports and exports in the same clause, but the Constitution prohibits export taxes.

The government's response brief in the Learning Resources case reveals the administration's strategy for defending these tariffs, the government doubles down on the ordinary meaning of regulate, again citing dictionary definitions and arguing that imposing tariffs clearly falls within the power to control or adjust by rule.

The government emphasizes that this interpretation is reinforced by Supreme Court precedent, particularly Gibbons versus Ogden and Algonquin.

But the government's most interesting argument involves the major questions doctrine.

The government argues this doctrine simply doesn't apply in the foreign policy context.

Citing Justice Kavanaugh's recent concurrence in FCCV Consumers Research, the government contends that the major questions canon applies only in the domestic sphere and has not been applied by this Court in the national security or foreign policy context.

The government's reasoning is that in foreign affairs the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people.

The government argues that the doctrine does not translate to those contexts because of the nature of presidential decision making in response to ever changing national security threats and diplomatic challenges.

The government also distinguishes between presidential and agency action.

The government argues that major questions doctrine concerns dissipate when Congress delegates authority directly to the President rather than to administrative agencies because the President is the most democratic and politically accountable official in government.

LR's reply brief attempts to tackle the government's key arguments.

On Algonquin, Elar argues the government is comparing apples to oranges.

Section 232 of the Trade Expansion act expressly addresses presidential changes to an import duty and had legislative history replete with references to duties, tariffs, import taxes, and fees.

By contrast, respondents cannot locate a single reference in IEEPA's history to any monetary exactions war whatsoever.

Learning Resources provides a powerful example.

Using the Communications act of 1934.

That law gives the FCC power to regulate communication carriers separately from imposing taxes for universal service.

LR argues that if regulate included taxation power, the FCC could ignore the limiting principles that Congress carefully wrote into the taxation provision, principles the Supreme Court just found crucial in upholding the act against a constitutional challenge on the major questions doctrine.

Learning Resources pushes back hard against the government's foreign affairs exception.

The company argues that what's at stake is a distinctly Article 1, not Article 2.

Tariffing power imposed on Americans.

Learning Resources invokes Youngstown Steel, noting that even in foreign policy contexts with obvious foreign policy implications, the Court has required clear congressional authorization, as there were when this Court invalidated the President's seizure of steel mills during the Korean War.

Learning Resources also cites numerous appellate decisions holding that the major questions doctrine applies to presidential action, not just agency action.

The Supreme Court's September 9th order consolidating these cases and expediting briefing signals.

The Court recognizes the national importance of these questions.

The consolidated cases will receive one hour of oral argument in the first week of November 2025.

The briefing schedule is aggressive opening briefs due September 19th amicus briefs by September 23rd response briefs by October 20th reply briefs by October 30th.

This timeline suggests the Court wants to resolve these questions quickly, likely issuing a decision before the end of the term.

What makes these cases so significant isn't just their immediate impact on trade policy.

They're really about fundamental questions of constitutional structure and presidential power.

If the Court sides with the government, future presidents will have sweeping authority to impose tariffs during declared emergencies.

And presidents have declared lots of national emergencies.

The implications could extend far beyond trade to touch virtually any aspect of the economy that involves foreign property or persons.

If the Court sides with the challengers, it will significantly constrain presidential power over trade policy and reinforce Congress's role as the primary driver of tax and trade policy.

The decision could also strengthen the major questions doctrine and its application to presidential action.

These cases also present fascinating questions about how courts should interpret statutes enacted decades ago in light of modern constitutional doctrines, like the Major Questions doctrine that didn't exist when IEEPA was passed.

As we await oral arguments in November, these consolidated cases represent a constitutional clash of the highest order.

At stake is nothing less than the balance of power between Congress and the president over one of government's most fundamental the power to tax.

The legal arguments on both sides are sophisticated and deeply rooted in constitutional text, history and precedent.

The government argues for a broad reading of executive power grounded in the ordinary meaning of regulate and historical practice.

The challengers argue for a narrow reading that preserves Congress's constitutional role as the primary driver of tax policy.

Whichever way the Court decides, the ruling will likely reshape the relationship between Congress and the president in ways that extend far beyond these particular tariffs.

We'll be following the case closely and will bring you full coverage of the oral arguments when they occur in November.

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