SCOTUS IEEPA Cases a 'Coin Flip,' Ruling Expected by End of Year, Attorneys Say
The likelihood of the Supreme Court striking down President Donald Trump's tariffs issued under the International Emergency Economic Powers Act is a "coin flip," various attorneys said during a Sept. 30 webinar hosted by The Budget Lab, a policy research center at Yale University. Scott Lincicome, vice president of general economics at the Cato Institute, an amicus in the IEEPA tariffs cases, noted a "very clear split" among trade lawyers and constitutional lawyers as to where the Supreme Court will come out on this issue.
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The cases on the tariffs are set for argument before the high court on Nov. 5 and will see the court decide whether IEEPA allows for tariffs at all, and, if so, whether the reciprocal tariffs and tariffs meant to combat fentanyl trafficking exceed that power (see 2509180050).
Stan Veuger, senior fellow in economic policy studies at the American Enterprise Institute, another amicus in the cases, took a more pragmatic approach, noting that the prediction markets have it at a "bit over 50%" that the court strikes down the tariffs. However, if you look to the party affiliation of the judges appointed to the U.S. Court of Appeals for the Federal Circuit, which struck down the tariffs, and apply their voting patterns in this case to the Supreme Court, it comes out narrowly in favor of the government, Veuger said.
"I know constitutional lawyers like to think of themselves as being in a more serious business than" merely looking to party affiliation, "usually, but I think it gives you a good indication of the fact that it really is going to be close," he added.
Peter Harrell, nonresident fellow at the Carnegie Endowment for International Peace, himself an author of an amicus brief in the cases, was more bullish on the challengers' chances. Putting at about a 70% chance the cases against the tariffs succeed, Harrell said one of the reasons the court's "more likely to strike down the tariffs" is that there's "a whole set of statutes the court can point to in its ruling" under which the president can impose tariffs.
Lincicome said one of the reasons that the prediction game related to how the Supreme Court will come out in these cases is so difficult to call is the fact that there "seems to be an almost infinite way for the courts to kind of halve the baby," where the court could uphold some tariffs but not others. That means there's "a lot of different ways that this can go without having this nice, clean ruling that we all would like," he said.
Picking up on this point, Harrell said he predicts the court will make a decision on whether IEEPA, which lets the president "regulate ... importation" of property, allows for tariffs, since "Presidents have used, or maybe misused, IEEPA in lots of ways," ranging from Iran sanctions to countering Chinese telecommunications spying. He noted that this makes it less likely the court will wade into whether sustained trade deficits or fentanyl trafficking are "unusual and extraordinary" threats under IEEPA.
Regarding when the high court will issue its decision, Veuger said he spoke with one of the plaintiffs' attorneys, who is expecting a decision by Thanksgiving or "almost immediately after." Lincicome said he had heard the decision will come by "early December." Harrell added some nuance, declaring that a ruling against the tariffs is most likely to "come quite quickly." However, if it gets into the spring and there's no ruling, "that's a pretty strong signal that it's going to uphold the tariffs," he said.