Both sides in the historic controversy over President Trump’s policy of imposing charges on goods coming into the U.S. from around the world have urged the Supreme Court to act with unusual speed to decide the dispute.
By agreement, government lawyers and those for challengers to the tariffs asked the Court to agree within one week to take on the case, set a much-expedited schedule for filing written briefs, and hold a hearing in early November. The Court has the option to grant or deny the case, and to set a different schedule if it does grant review.
The President’s tariffs policy, a government power which he eagerly embraces, was ruled illegal just last Friday by a special federal appeals court. Only Congress has power to impose or modify tariffs, even in an emergency, and Congress has only limited power to give the President permission to use it, the lower court ruled by a 7-to-4 vote.
In rushing its appeal to the Supreme Court, lawyers for the Trump Administration warned of a potential global trade crisis if the tariffs are not allowed. They told the Court that world leaders are questioning Trump’s powers as a result of the controversy, and some “are walking away from or delaying negotiations” or changing their positions on how to deal with the U.S. government.
Although the lower court ruling left in effect temporarily the tariffs that Trump had imposed under five separate emergency orders this year, the government appeal said that the decision “gravely undermines the President’s ability to conduct real-world diplomacy and his ability to protect the national security and economy of the United States.”
Trump has argued that the tariffs, some of which were applied to virtually every nation around the world, are necessary to deal with unfair treatof the U.S. in other nations’ trade practices and that the tariffs will bring in huge sums of revenue for the U.S. government – reducing federal budget deficits by $4 trillion in coming years.
Although Trump has claimed repeatedly that foreign nations from which the goods are arriving will pay the tariffs, that is not true. Businesses that are receiving the goods will pay the tariffs and the funds will go into the U.S. Treasury. Most businesses will pass along to their customers these added charges rather than absorbing them themselves. Already, some prices on foreign-made products already are rising as a result of the Trump policy.
Lawyers for the small businesses that are challenging the tariffs have said they will not oppose review by the Justices. (When both sides agree for that to happen, it usually does. There is no need for the Court to wait and see what other lower courts might do, because legal fights over tariffs only go to specialized courts, so no conflict will develop. Two specialized courts did agree that the tariffs were illegal.)
Here is the schedule that the two sides suggested:
· Decide by September 10 whether to grant review.
· If review is granted, agree to expedite the process.
· Set September 19 for filing the government’s brief making its arguments for the tariffs.
· Set October 20 for filing the challenges’ brief with their opposing arguments.
· Set October 30 for filing the government reply brief.
· Schedule a public hearing for a day in the first week of November.
That schedule of about eight weeks is considerably faster than the Court’s normal operations involve. Ordinarily, it usually takes weeks for the Court even to decide whether it will take on a new case, and, if it does so, it can take at least 15 weeks more before a hearing is scheduled. When a Court does expedite a case, it can decide it quite quickly afterward, but there is no time limit for that deliberation.
The Court already has designated the cases for hearings in the first week of November, but those are all set for the morning sittings. The tariffs case might be set for an afternoon, or perhaps replace a case now set for a morning.
It is expected that all nine Justices will take part in the entire process on the tariffs controversy. The Court does not sit in smaller panels, as lower appeals courts can do.
