A MARTÍNEZ, HOST:
All right. Let's dive deeper with this with Amy Howe. She's the co-founder and primary reporter for SCOTUSblog. So, Andy - Amy, sorry - what did you observe about the questions that the justices asked yesterday?
AMY HOWE: The justices - you know, it was interesting because when the lower court, the U.S. Court of Appeals for the Federal Circuit, heard this case, they did not divide on - necessarily on ideological lines. The dissent in that case, which would have upheld the Trump tariffs, was written by an Obama appointee, Judge Richard Taranto. But, you know, as Danielle said, in this case, all three of the court's liberal justices were squarely on board, supporting the challengers. And so it's a question of whether or not they can pick two more votes to strike down the tariffs. You know, they certainly did seem to have the vote of Justice Neil Gorsuch, who was one of the strongest defenders of the challengers. And, you know, Justice Amy Coney Barrett had some questions that were skeptical. Chief Justice John Roberts also had some questions that seemed to be very skeptical. So it seemed that there was probably a majority to strike down the tariffs.
MARTÍNEZ: How malleable is that term, regulate imports?
HOWE: You know, that is kind of the $64,000 question, you know, both because, you know, including the court's conservative justices, there's long been this principle called textualism, which is the idea that you look at the text of the statute and not what Congress necessarily intended to do when it enacted the statute. You know, the - and there are arguments on both sides. Justice Barrett, on the one hand, said, you know, have - can you - to John Sauer, the solicitor general representing the Trump administration, can you point to any other place in federal law where the term regulate has been used to allow the administration to impose taxes? On the other hand, John Sauer said, you know, tariffs have traditionally been a way for the president to regulate importation.
So, you know, on the one hand, perhaps it is somewhat malleable. And then you get into some, you know, somewhat arcane legal doctrines that the Supreme Court has employed, including one called the major questions doctrine, which may or may not be in play here. That's the idea that if Congress wants to give the power to make decisions that have major economic or political significance, it needs to say so really clearly. So it's not enough that this phrase - regulate importation - is malleable. And the Supreme Court relied on this doctrine called the major questions doctrine to strike down several Biden - Biden-area - era initiatives...
MARTÍNEZ: Yeah.
HOWE: ...Including the student loan debt relief program, the COVID-19 eviction moratorium, the COVID-19 vaccine mandate. So I think a lot of people are watching this closely to see if, you know, essentially, what's good for the goose is good for the gander. Are they going to use...
MARTÍNEZ: Yeah.
HOWE: ...The major questions doctrine to strike down the tariffs program as well?
MARTÍNEZ: The arcane stuff's the nitty-gritty, Amy. That's the fun stuff, right? It's...
HOWE: It is the fun...
MARTÍNEZ: It's...
HOWE: ...Stuff. It was the...
MARTÍNEZ: Yeah.
HOWE: ...Sort of legal nerd Super Bowl yesterday.
MARTÍNEZ: Yeah. So if the Supreme Court, say, were to strike down the tariffs, we're talking about, like, $200 billion in tariffs since April. I mean, what happens to the money? What does Trump have to do with the money?
HOWE: I mean, that was a question that Justice Barrett had for Neal Katyal, the lawyer representing the small businesses in the case. She said, is this going to be a complete mess? And Neal Katyal's answer was, yes. He acknowledged it's complicated, but he said that's not a reason to rule for the challengers. The Supreme Court has said this in other cases. And he gave the justices a variety of options to try to mitigate the impact in terms of the refund process. He said, you could put your decision on hold to give...
MARTÍNEZ: Yeah.
HOWE: ...For example, Congress time to act, which sounds like it would be highly unusual - which it is - but it's not unprecedented. The Supreme Court has done that before. Or, he said, you could say that your ruling only applies going forward, so that businesses in the future don't have to pay the tariffs but the government wouldn't have to deal with the refund issue.
MARTÍNEZ: One more thing, really quick. What are the chances that whatever ruling we get will speak to the larger issue of executive power, something that the court has not really stopped President Trump from expanding?
HOWE: Yeah. I mean, I think it, you know, by definition, almost certainly will speak to the question of executive power. You know, the question is sort of, what issue of executive power? Because this is a question of the president, you know, asserting executive power, asserting power that arguably Congress has - the power to tax. But we'll be - also be seeing other cases soon in which the president, involving, you know, the FTC...
MARTÍNEZ: OK.
HOWE: ...Commissioner, has power of - to...
MARTÍNEZ: Yeah.
HOWE: ....Where he's arguing that...
MARTÍNEZ: I have to leave it...
HOWE: ...Congress is taking away...
MARTÍNEZ: Yeah.
HOWE: ...His power.
MARTÍNEZ: I'm sorry. I have to leave it there. Amy Howe...
HOWE: Yeah.
MARTÍNEZ: ...Co-founder and lead reporter for SCOTUSblog. Amy, thanks.
HOWE: Thank you. Transcript provided by NPR, Copyright NPR.
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