Wait a Minute, Is SCOTUS Actually “Skeptical” of Handing Trump Unilateral Power?

False dawns a’plenty at the Supreme Court on Wednesday. The Nine Wise Souls heard a case on which depends the president’s unilateral power to use tariffs to force trade deals and, generally, his power to do almost anything he wants to do under a declared “emergency.” The key word in all the dispatches from the chamber was “skeptical.” From The Wall Street Journal:

Solicitor General John Sauer, who defended the tariffs, spent most of his presentation fielding sharp questions from justices across the ideological spectrum. The court’s three liberal members made their opposition clear from the outset, and several key conservative justices soon followed. In particular, Justice Neil Gorsuch pressed Sauer at length on the separation of powers. If the court allows Congress to broadly “hand off” its tariff power to the president, there might be no limits on other constitutional powers Congress might be able to relinquish, Gorsuch suggested. It was arguably the most pivotal moment of the hearing. Other conservatives—notably Chief Justice John Roberts and Justice Amy Coney Barrett—also asked questions that suggested they harbored deep reservations about the Trump administration’s position.

Except that the “skeptics” within the carefully manufactured conservative majority seemed determined to undermine the White House’s position without unduly angering the guy who lives there.

Justice Samuel Alito suggested that Trump may be able to harness different statutes as a more clear-cut legal basis for many of the tariffs being challenged in the case. Those other statutes provide explicit authority for the president to enact tariffs in some circumstances, but they contain stricter conditions and limits than the 1977 statute that Trump invoked. Barrett, meanwhile, expressed concern about a potential “mess” if the court rules against Trump and the government must refund billions of dollars in tariff revenue it has already collected. Her question prompted lawyer Neal Katyal, who represented small businesses challenging the tariffs, to suggest that the court could make its ruling “prospective” only, meaning no refunds would be necessary. These and other questions signaled that the justices, even if they reject Trump’s position, are wary of stoking chaos in the central plank of his economic agenda.

I would argue that chaos is his “economic agenda,” but that’s just me. But one potential fly in the ointment may have come from Justice Neil Gorsuch, who took on the separation of powers aspects of the case, subtly accusing Congress of abandoning its constitutional powers. From CNN:

If Congress can delegate its constitutional authority to levy tariffs, Gorsuch pressed, what else could it delegate?

“If that’s true, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce—for that matter, to declare war—to the president,” Gorsuch asked. The point of Gorsuch’s question speaks directly to the idea of separation of powers. That aligns with an argument raised by the businesses challenging the tariffs: that imposing import duties, by default, is a power held by Congress.

My guess? Next spring, we’ll get a decision that trims the president’s definition of what an “emergency” is but the administration’s tariffs use will survive. Weak tea is the way to greet a false dawn.