My (admittedly aspirational) thread from yesterday on 10 things to watch for in today's hearings... https://x.com/PhilWMagness/sta...

Arguments will be streamed live here. It's not an exaggeration to state that the survival of constitutional government is at stake in this case. Either Congress determines tax policy as the Constitution requires, or we have rule by executive decree. https://www.supremecourt.gov/o...

Some pre-hearing predictions: - Gorsuch is NOT going to be a fan of Trump's arguments because of nondelegation & major questions doctrine issues. - Roberts will be the wildcard. - Kagan will probably have the most nuanced take out of the 3 liberal justices.

Fresh cup of imported Guatemalan coffee (now subject to an unconstitutional de minimis tariff) ready to go. That'll be the next lawsuit...

And we're off, with the Trump admin arguments. Sauer leading off with the president's unsubstantiated claim that trade deficits and fentanyl are "emergencies"

Interesting...the usually-silent Thomas is first off with questions on the MQD.

Somebody needs to give Sauer a bag of Ricola...but at the post-tariff price.

And from the court's liberal wing: a question on Article I's explicit tariffs powers vs. implied Article II powers that Trump has claimed for himself.

And there's Sauer claiming these are not taxes, but "regulatory tariffs" that are only incidentally for revenue. I wrote one of the only histories of this dimension of US tariff policies. Sauer is flat out wrong. https://link.springer.com/arti...

"You want to say tariffs are not taxes, but that is exactly what they are." Boom.

More specifically, Sauer is wrong on tariffs being a regulatory power and not a tax. JW Hampton v. US explicitly addressed this & concluded the tax and regulatory powers of tariffs are concurrently exercised.

Kagan is completely torching Trump's argument right now. She's clearly not buying the claim that tariffs are not tariffs. Barrett joining in too with skepticism...

Ouch. Sauer shot down again. "IEEPA was designed and intended to limit presidential authority...Congress was intending to constrain" presidential authority.

Jackson is clearly not convinced. I think the admin has already lost the 3 liberal justices.

Re. Nixon's prior uses of tariffs & IEEPA, Sauer is just factually incorrect. See brief here: https://www.supremecourt.gov/D... Also, Nixon's tariffs were already addressed in Trade Act of 1974, NOT IEEPA.

Sauer leaning on Yoshida is going to come back and bite the Trump admin. Yoshida is NOT friendly to what Trump is trying to do with IEEPA.

Someone needs to send this to John Sauer...

Now we get conservative justices. Roberts sounds skeptical... "Noone has argued that [IEEPA includes tariffs] until this particular case."

Roberts: "Who pays the tariff?" Sauer: <inserts pile of gibberish with no coherent basis in economics>

Sauer is really leaning in on the "tariffs are regulatory, not revenue" argument. Again, this is a disastrous strategy. That doctrine is long settled & it says, quite clearly, that tariffs are taxes.

Bingo right here from Jonathan Turley. Trump has admitted all over the place - including in his OWN COURT FILINGS - that tariffs raise substantial amounts of revenue. A regulatory power cannot be parsed from the tax power implications. https://x.com/JonathanTurley/s...

Sauer says "it is not" a revenue-raising power. Trump, all over the place for the last 6 months: "My tariffs are gonna raise trillions and trillions of dollars!"

Barrett is not buying the Trump admin arguments either. Assuming Gorsuch follows his prior jurisprudence and these comments are indicative, we're looking at at least a 6-3 ruling against Trump with the 3 liberals + Barrett, Roberts, and Gorsuch going against Trump.

Thomas now giving Sauer an opportunity to lay out his case against nondelegation argument. Sauer's claiming Trump's tariffs are comparable to WARTIME policies from WWI and WWII, claiming that expands into peacetime. There's absolutely no limitation on such an interpretation.

Alito turns to Yoshida. It's the friendliest case to Trump's position, but it's a double edged sword because it has limitations on the tariff power.

And there it is - JW Hampton is a huge roadblock to Trump's argument, as I've been pointing out for months.

Sauer: "I can't say enough. It is a regulatory tariff, not a tax." This is an epically terrible argument, and it will bite Trump badly. Trump has already admitted that tariffs are a massive multi-trillion dollar tax.

Now we get Gorsuch on major questions... He's not buying Trump's/Sauer's argument

Gorsuch, summarized: Trump admin's argument implies that Congress could cede its entire responsibility in foreign policy to the president. He just cornered Sauer to concede there is a nondelegation component to foreign policy. Gorsuch is not buying the admin's position at all.

Gorsuch: Could IEEPA be used by a future president to declare a climate change emergency. Sauer: Yes, it's very likely that could be done.