As the U.S. Supreme Court heard arguments last week about the constitutionality of President Donald Trump’s executive order to end birthright citizenship, Justice Sonia Sotomayor seemed skeptical.

The order as written applies only to babies born in the future, and the Trump administration has asked the court to exclude current citizens from any decision. Still, the court’s senior liberal justice wasn’t so sure it would work out like that.

“But the logic of your position, if accepted, is that this president or the next president or Congress or someone else could decide that it shouldn’t be prospective,” Sotomayor told U.S. Solicitor General D. John Sauer, the government’s top advocate at the court. “There would be nothing limiting that, according to your theory.”

The birthright citizenship case, Trump v. Barbara, is forcing the Supreme Court to confront the prospect of the United States becoming a much different kind of nation — one where Americans risk losing their citizenship and babies could be born effectively stateless. It’s also a nation that would more closely resemble its past, when broad swaths of people were excluded from the coveted title of American.

A majority of the court, including several conservative justices, appeared unpersuaded by the Trump administration’s argument that the 14th Amendment to the Constitution, ratified during Reconstruction, doesn’t guarantee citizenship to nearly everyone born on American soil. The court may very well strike down the order, which has never taken effect, later this year.

But whatever the decision, the case has prompted a high-stakes debate over who is an American — and the consequences of that definition — that’s playing out in the courtroom, in court documents and on the steps of the Supreme Court.

“Birthright citizenship is not just a legal principle,” Norman Wong said at a demonstration outside the Supreme Court last week.

Wong is a grandchild of Wong Kim Ark, who was born in San Francisco but denied entry back into the country after visiting China more than a century ago. Officials at the time argued he wasn’t a citizen, but he took his case to the Supreme Court and, in a 1898 decision, the justices affirmed that virtually all children born in the United States were guaranteed citizenship.

“It’s a statement about who we are as a nation,” Wong said of birthright citizenship. “It affirms that America is not defined by bloodlines or exclusion, but shared values and equal rights.”

A different view

Trump and some Republicans view birthright citizenship differently. 

The 14th Amendment says “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

The Trump administration, which has worked to carry out mass deportations, contends that children born to parents in the country illegally or temporarily are not subject to the country’s jurisdiction. Most historians and legal scholars repudiate that position.

The executive order, signed on Trump’s first day back in office, calls citizenship a privilege — not a right — that’s a “priceless and profound gift.” 

During a recent Oval Office event, Trump told reporters that birthright citizenship was intended to extend citizenship to formerly enslaved people and their children following the Civil War. 

“The reason was it had to do with the babies of slaves,” Trump said.

Some Republicans have embraced a conception of the U.S. as a nation bound by a distinct cultural heritage — sometimes in language that celebrates European settlers — as opposed to a people brought together by the idea of America or a set of common principles. Like Trump, they advocate for a restrictive approach to immigration.

At a conference last fall on national conservatism — the name sometimes given to this perspective — U.S. Sen. Eric Schmitt, a Missouri Republican, called America a “a way of life that is ours, and only ours, and if we disappear, then America, too, will cease to exist.”

Schmitt filed a brief with the Supreme Court in January, along with Republican Rep. Chip Roy of Texas, in support of the executive order. 

“The Citizenship Clause applies only to those who have been allowed to adopt our country as their permanent and lawful home,” the brief says.

Revoking citizenship?

At the Supreme Court last week, Sotomayor pressed Sauer on a 1923 Supreme Court decision, U.S. vs. Thind. In that case, the justices ruled that a Sikh man from India, Bhagat Singh Thind, wasn’t eligible for citizenship. 

Thind argued that he was a “free white person,” a category of person allowed to naturalize under federal law at the time. The court found that Thind didn’t meet that definition under the common understanding of the phrase. The federal government revoked the citizenship of dozens of South Asian Americans following the decision.

Sauer reiterated that the Trump administration was only asking for “prospective relief,” prompting Sotomayor to interject.

“No, what I’m saying to you (is), yeah, that’s what you’re asking for relief right now,” Sotomayor said. “I’m asking whether the logic of your theory would permit what happened after the court’s decision in Thind, that the government could move to unnaturalize people who were born here of illegal residents.”

Sauer responded no, before concluding that “we are not asking for any retroactive relief.”

The exchange spotlighted the scenario that many advocates for immigrants fear if the Supreme Court strips away birthright citizenship. 

In a court brief, the Fred T. Korematsu Center for Law and Equality at the University of California, Irvine School of Law, which uses litigation to advance racial justice, and more than 70 other nonprofit groups warned that upholding the order would invite efforts to revoke the citizenship of countless Americans.

While the order is styled as only forward-looking, the groups said it threatens much deeper harms. To uphold Trump’s order, the Supreme Court would need to conclude that birth on U.S. soil doesn’t guarantee citizenship. Once that happens, they argue, “it is all too easy” to imagine the government retroactively removing citizenship.

“In that scenario, without further intervention from Congress, the affected individuals would become undocumented, with many or most becoming stateless,” the brief says.

American Civil Liberties Union national legal director Cecillia Wang, arguing against the order at the Supreme Court, said the 14th Amendment has provided a “fixed, bright-line rule” on citizenship that has contributed to the growth and thriving of the nation. 

She cautioned that the order would render whole swaths of American laws senseless.

“Thousands of American babies will immediately lose their citizenship,” Wang said. “And if you credit the government’s theory, the citizenship of millions of Americans — past, present and future — could be called into question.”

Ariana Figueroa contributed to this report. 

WASHINGTON — The U.S. Supreme Court Wednesday seemed poised to reject the Trump administration’s attempt to redefine the constitutional right to birthright citizenship, and instead uphold the country’s long understanding of citizenship by birth on American soil. 

If a majority of Supreme Court justices strikes down President Donald Trump’s executive order to end birthright citizenship for children born to parents without legal status or temporary immigration statuses like visas, it will be the second recent major blow to the president via the high court. Earlier this year, a majority of justices struck down his use of sweeping tariffs. 

Trump, who signed the executive order aiming to end birthright citizenship as one of his first acts after his inauguration in 2025, came to the courtroom to hear the oral arguments, a first for a sitting president. 

‘Quirky’ administration argument

A majority of the justices during Wednesday’s oral arguments were skeptical of Solicitor General D. John Sauer’s arguments that the citizenship clause of the Constitution’s 14th Amendment was only intended to grant citizenship to the children of newly freed African American slaves, not immigrants. 

Chief Justice John Roberts called one of Sauer’s key arguments “quirky,” and questioned how it could be applied to an entire class of immigrants without legal status. 

Sauer argued that the children born to parents without legal status or temporary visitors are not “subject to the jurisdiction of the United States” and are instead subject to the laws of their home country. He cited carve outs in birthright citizenship, such as the children born to foreign diplomats.

“You expand it to a whole class of illegal aliens,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

Along with Roberts, the liberal wing of the court and conservative Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett also did not seem swayed by Sauer’s argument. 

Gorsuch asked Sauer if, under the Trump administration’s interpretation of the 14th Amendment, Native Americans would be considered birthright citizens “under your test.” 

“Uh, I think so,” Sauer said.

Indigenous people were granted U.S. citizenship by Congress in 1924, but were not granted citizenship under the 14th Amendment because those children were born to parents who were citizens of tribal governments. 

Sauer also contended the 1898 Supreme Court ruling that upheld citizenship based on birth on American soil, United States v. Wong Kim Ark, was wrongly decided. 

He argued that the Wong Kim Ark case did not take into consideration “sojourn travelers,” who are temporary visitors in the U.S. and give birth.   

Sauer also said the Trump administration was not looking for the justices to overturn that case. 

ACLU arguments

Liberal justice Elena Kagan said that Sauer’s argument to the court was an effort to create a “revisionist history” of the Wong Kim Ark case. 

“Everyone took Wong Kim Ark to say that, as a result of that, birthright citizenship was the rule,” she said. “And I think everybody has believed that for a long, long time.”

American Civil Liberties Union lead attorney Cecillia Wang said during oral arguments that when the federal government tried to strip Ark of his citizenship, “largely on the same grounds (the Trump administration) raised today,” the Supreme Court rejected those efforts.

“This Court held that the 14th Amendment embodies the English common law rule (that) virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen,” said Wang, who is the daughter of Taiwanese immigrants.

Her parents were in the U.S. on student visas when she was born in Oregon, meaning that if Trump’s executive order were in effect at that time, she would have been denied U.S. citizenship.

“Ask any American what our citizenship rule is and they’ll tell you, everyone born here is a citizen alike,” Wang said. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”

Birthright citizenship has been a longstanding core principle in the United States, where nearly any child — regardless of their parents’ immigration status — born on U.S. soil is automatically granted citizenship. 

The text of the clause is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Experts have warned that if the constitutional right to birthright citizenship were struck down, it would effectively create a class of millions of stateless people, leaving them without a country to call home.

If the high court determines that Trump violated the Constitution with his executive order, it would be a major block to the president’s goal in defining who is American, as Trump has aimed to reshape the country’s racial and ethnic makeup through limits to migration and an aggressive immigration campaign of mass deportations. 

A decision from the high court on the case, Trump v. Barbara, is likely not going to come until the end of the court term, in late June or early July. If the court decides to uphold the executive order, it would go into effect 30 days after the ruling. 

New world, old Constitution

Sauer argued that birthright citizenship should not be applied to children of temporary visitors, such as foreigners who partake in what opponents call “birth tourism.”

Roberts asked Sauer how much of an issue birth tourism is – the idea that foreign visitors specifically travel to the U.S. for the purpose of giving birth and obtaining citizenship for their soon-to-be born children.

“No one knows for sure,” Sauer said, citing media reports that many Chinese tourists travel to the U.S. and give birth. 

However, China does not allow its citizens to have dual citizenship. 

Roberts seemed skeptical that birth tourism should be considered in Sauer’s legal arguments for the purpose of restricting birthright citizenship. He told Sauer that birth tourism “wasn’t an issue in the 19th century.” 

“We’re in a new world now,” Sauer said. “Where 8 billion people are one plane ride away from having a child as a U.S. citizen.” 

But Roberts shot back, “Well, it’s a new world, it’s the same Constitution.”

Other countries

Sauer also argued that the U.S. should fall in line with the citizenship laws of other countries.

“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” he said. “It demeans the priceless and profound gift of American citizenship.”

Kavanaugh questioned why the U.S. should worry about the citizenship requirements of other countries. 

“Obviously we try to interpret American law with American precedent based on American history,” Kavanaugh said. “I’m not seeing the relevance as a legal, constitutional interpretive matter necessarily, although I understand it’s a very good point.”

Shortly after oral arguments ended, Trump took to his social media site, Truth Social, where he falsely said the U.S. is the only country to have birthright citizenship. Argentina, Brazil, Canada and Mexico are among several countries that have birthright citizenship.

“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” he wrote. 

Trump left Wednesday’s oral arguments after Sauer was finished presenting his argument to the justices, and about a few minutes into arguments from the ACLU’s Wang, according to White House pool reports. Oral arguments lasted for about two-and-a-half hours.

Earlier decision

This is the second time the Trump administration has brought a birthright citizenship case before the justices. 

Last year, after federal judges in Maryland, Massachusetts, New Hampshire and Washington state struck down the president’s executive order, the Trump administration appealed to the Supreme Court, but asked the justices to consider the lower courts’ use of universal injunctions, rather than the merits of birthright citizenship.

The justices took up the case, and in a 6-3 vote divided along ideological lines, the use of universal injunctions was curtailed by the conservative wing of the high court. 

After the ruling, immigration advocates and the ACLU filed class action suits, which were successful in blocking the birthright citizenship executive order. The suits argued that future children born in the United States without gaining citizenship constituted a nationwide class.

“If you credit the government’s theory, the citizenship of millions of Americans past, present and future could be called into question,” Wang said. 

WASHINGTON — The U.S. Supreme Court will hear oral arguments Wednesday in a case that could reshape the understanding of who is American by birth.

The case, Trump v. Barbara, challenges President Donald Trump’s executive order that redefines citizenship to exclude children born to parents who either do not have legal status, or hold temporary legal visas. 

It has the potential to upend the guarantee of birthright citizenship in effect since a Supreme Court decision in 1898 that extended citizenship to virtually anyone born in the United States. There is a small carveout for children born to foreign diplomats. 

The Trump administration petitioned the high court in December after multiple lower courts struck down the executive order, finding it violated the Constitution.

Birthright citizenship has been a longstanding core principle in the United States, where nearly any child — regardless of their parents’ immigration status — born on U.S. soil is automatically granted citizenship. Experts have warned that if birthright citizenship were struck down, it would effectively create a class of millions of stateless people.

But what was once a fringe legal theory has been pushed into the mainstream by the president and his far-right allies, who have sought to redefine who is American. 

They argue the citizenship clause of the Constitution’s 14th Amendment, which is the basis for birthright citizenship, was meant to apply to newly freed African American slaves after the Civil War, not to children of immigrants. Most legal scholars and historians disagree with that interpretation. 

The text of the clause is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

After oral arguments are heard on Wednesday, a decision from the Supreme Court is expected before the court’s summer recess begins at the end of the term in late June or early July. 

19th-century case

This is not the first time the Trump administration has brought a birthright citizenship case before the Supreme Court. 

Last year, after federal judges in Maryland, Massachusetts, New Hampshire and Washington state struck down the president’s executive order, the Trump administration appealed to the Supreme Court, but asked the justices to consider the lower courts’ use of universal injunctions, rather than the merits of birthright citizenship.

The justices took up the case, and in a 6-3 vote divided along ideological lines, the use of universal injunctions was curtailed by the conservative wing of the high court. 

After the ruling, immigration advocates and the American Civil Liberties Union filed class action suits, which were successful in blocking the birthright citizenship executive order. The suits argued that future children born in the United States without gaining citizenship constituted a nationwide class.

Cody Wofsy, of the ACLU, is a co-lead attorney in the case and told reporters last week that the Supreme Court already decided the issue of birthright citizenship in 1898.

“The constitutional text is clear, the precedent is clear and the history is clear,” Wofsy said.

The 1898 case, United States vs. Wong Kim Ark, settled the idea that automatic citizenship was granted to children born on U.S. soil, Wofsy said.

Ark, born in San Francisco, was denied entry back into the country after visiting China. Officials at the time argued that because his parents were Chinese citizens in the United States on temporary visas at the time of his birth, and therefore were not “subject to the jurisdiction” of the U.S., he was not a citizen. He took the issue to the high court and in 1898 the Supreme Court affirmed that children born in the United States were guaranteed citizenship.

Arguing on behalf of the Trump administration, Solicitor General D. John Sauer has said that the 1898 case is being misinterpreted, and that it meant to only include children born to parents who were granted authorization to be in the U.S.

“Illegal aliens are not ‘permitted by the United States to reside here,’ and thus their children are excluded from citizenship,” Sauer argued in briefs. 

However, Trump’s executive order would also deny citizenship to children born to parents on temporary visas, such as for work or school. 

Sauer also relies on an 1884 Supreme Court decision that denied citizenship to John Elk, a Native American man born in Nebraska, who was no longer a member of his tribe and tried to become a naturalized U.S. citizen in order to vote. 

Elk was denied citizenship, because he was not “subject to the jurisdiction of” the U.S. because of his “political allegiance” to his tribe, even though he had renounced his tribal citizenship. Congress extended citizenship to all Native Americans in 1924.

Sauer cites the Elk case in his argument that the citizenship clause does not apply to children born to immigrants on temporary visas or undocumented people and “only to those born of parents with primary allegiance to the United States.” The administration is not arguing that Indigenous people should be denied birthright citizenship.

Torey Dolan, an assistant professor at the University of Wisconsin Law School, said Sauer’s argument wrongly conflates Indigenous people with migrants, despite a long U.S. legal tradition of treating them distinctly. 

“American law has always found a way to distinguish Indigenous people from non-Indigenous people in a way that has never been applied to immigrants,” Dolan, an enrolled citizen of the Choctaw Nation of Oklahoma, said. 

She noted that in the Declaration of Independence, which includes the grievances of the colonists, one complaint was how British King George III refused to allow for migration into the colonies in order to occupy land stolen from Indigenous tribes. 

“This conflation of immigrants and Indigenous people, for the sake of this argument, I think, is pretty egregious, and I think it really obfuscates American history and its colonial history in particular,” she said. 

‘Pure chaos’

Legal advocates challenging the executive order are confident they will win at the Supreme Court. 

“President Trump’s executive order is plainly unconstitutional and unlawful, and we’re confident that the Supreme Court will reaffirm existing legal precedent and strike down this executive order once and for all,” Hannah Steinberg, a staff attorney for the ACLU’s Immigrants’ Rights Project, told reporters. 

In briefs, the ACLU has also argued that if Trump’s executive order were to go into effect, it would create a stateless class of people. The Migration Policy Institute, a think tank that studies migration, found that the end of birthright citizenship would increase the unauthorized population by an additional 2.7 million by 2045. 

Trump’s push to end birthright citizenship is part of the administration’s broader goal to curtail migration to the U.S., arguing that birthright citizenship is an incentive for unauthorized immigration.

But the idea that people migrate to the U.S. so their children can be born as citizens is not supported by research, Julia Gelatt, the associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, said.

“People move mainly for opportunity for themselves and their children and also for safety,” she said. “There are many unauthorized immigrants who have come to the United States with their own children, who were born in another country, who won’t be U.S. citizens, and they still come.” 

“I don’t think there’s any evidence that birthright citizenship specifically is an independent pull factor. It’s more the safety, the rule of law and the earnings potential that people see in the United States, and the opportunity to reunite with other families is another major factor,” she continued. 

Ama S. Frimpong, the legal director for the immigrant rights group We Are CASA, told reporters that there are practical questions to how Trump’s executive order would even work. 

“What happens in a household in which there are older children who are born here and now, suddenly they have a new baby who’s born tomorrow, and that baby is not going to have the same rights that their siblings have?” she asked. “Is a baby going to be subject to detention and deportation by their very own government that is meant to protect them because they were born here?” 

That reality of birthright citizenship being stripped, Frimpong said, would be “just pure chaos.”

WASHINGTON — U.S. Supreme Court justices seemed split Tuesday on whether the Trump administration should be allowed to turn away asylum-seekers who present themselves at ports of entry at the U.S.-Mexico border.

The question presented to the justices was whether migrants have to fully cross into the United States in order to have the right to apply for asylum and be processed, or if they can apply for asylum when they appear at a port of entry while on Mexico’s side of the border. 

The policy requiring a full crossing, known as metering, is defunct, but the Trump administration is asking the high court to make a determination in order to potentially revive the practice for future use at the southern border.

“This is an important tool in the government’s toolbox for dealing with border surges when they occur,” Vivek Suri, assistant to the U.S. solicitor general, told the court during oral arguments on the asylum case. “I can’t predict when the next border surge occurs, but I can say that when it does occur, this is a tool that (the Department of Homeland Security) would want in its toolbox. It’s not something the court should leave to future uncertainty.”

The six conservative justices seemed to agree with the Trump administration’s position, and questioned the definition of when a migrant “arrives” in the United States and can therefore seek asylum — legal protection granted to those fleeing danger or persecution in their home country.

The three liberals of the Supreme Court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson —  asked whether the policy violated federal law protecting refugees. 

Lower and appeals courts have repeatedly blocked the metering policy, finding it violated U.S. asylum and refugee law for those escaping persecution after the first Trump administration expanded its use in 2017. The Biden administration rescinded the policy in 2021. 

A 2020 investigation by the Department of Homeland Security’s Office of Inspector General found that up to 680 migrants per day were turned around as a result of the metering policy. 

The ‘magic thing’

Conservative Justice Amy Coney Barrett asked Kelsi Corkran, an attorney who argued on behalf of the immigrant legal aid and humanitarian group Al Otro Lado, how close an asylum seeker has to be to qualify as “arriving” in the U.S.

The immigration advocacy group originally brought the challenge in 2017 after asylum seekers were turned away by border officials at U.S. ports of entry. 

“What is the magic thing, or the dispositive thing, that we’re looking for, where we say, ‘Ah, now that person we can say arrives in the United States?’” Barrett asked. 

Corkran said someone arrives in the U.S. at a port of entry “when they are at the threshold of the port’s entrance, about to step over.” 

“I think that’s consistent with ordinary meaning,” she said. “I arrive at my house, or I arrive in my yard, when I’m going through the gate. Now that process of arriving is interrupted by the border officer physically blocking them from completing the arrival.”

Barrett also asked Suri if the Trump administration plans to reinstate the metering policy. 

Suri said the Trump administration would like to, “when border conditions justify.”

Jackson noted the policy, in practice, would require an asylum seeker to violate U.S. immigration law by entering into the country without authorization, based on the Trump administration’s argument that a migrant has to be on U.S. soil before making an asylum claim. 

That would be considered entering the U.S. unlawfully.

“So imagine a polite asylum seeker who wants to do everything by the book, he approaches the border but does not cross precisely because the law says you are not supposed to enter the United States without authority,” Jackson said. “If we’re trying to think about what ‘arriving in’ means, surely Congress was contemplating that a person would be coming to the United States, would be doing so with an intent to comply with the law that says you’re not supposed to enter, and thereby asking for entry.” 

Justice Brett Kavanaugh also questioned Suri about how the policy seems to give preference to migrants to enter the U.S. without authorization, rather than those who are seeking to make an asylum claim. 

Suri said the metering policy doesn’t prevent a migrant from seeking asylum. 

“It’s saying ‘our port (of entry) is at capacity today, try again some other day,’ and that time when that person comes in, that person could come in legally,” he said. 

Refugee laws

Sotomayor questioned Suri how the metering policy didn’t violate the United Nations Refugee Convention of 1951. That act, which the U.S. signed in 1967, was created after the M.S. St. Louis ship, carrying more than 900 Jewish refugees during World War II, was prevented entry to the U.S. and turned back to Europe. 

Some passengers were able to find refuge in other countries, but 254 died in the Holocaust.

Suri said the metering policy doesn’t send people back to their home country. 

“No, you’re just telling them to walk back,” Sotomayor said, adding that if the turn-back policy were applied to the Jewish refugees on the St. Louis, it would be the same as telling them to swim back. 

“They happened to be on a boat, but that’s what we did,” she said. “We didn’t let them dock. We didn’t consider whether they were being persecuted. And the majority of those people were shipped back or had to go back from where they came and were killed. That’s what we’re doing here, isn’t it?”

Suri said that he does “not deny the moral weight of claims made by refugees, but that is not the question before the court.”

He said the issue is whether Congress imposed the obligation “in the asylum and inspection statutes, and those refer only to aliens who arrive in the United States.”

Sotomayor pushed back and noted that if someone were to fly into LaGuardia Airport in New York, they “may not have put their foot on U.S. land, but they’ve arrived in the United States. They’re knocking on the door.” 

The justices are likely to make a decision on the case by late June. 

WASHINGTON — The U.S. Supreme Court will hear oral arguments Tuesday in a case to determine if a migrant on Mexico’s side of a border crossing with the United States can legally apply for asylum when arriving at a U.S. port of entry.

The case, which stems from a policy during President Donald Trump’s first term that denied migrants the opportunity to present for asylum, is meant to settle if Customs and Border Protection officers are allowed to refuse to process an asylum seeker who walks up to a port of entry.

A 2019 memorandum created what was known as the metering or “turn back” policy that resulted in border officials physically turning away asylum seekers before they could enter the country. The policy was based on an argument that migrants must be in the United States to apply for asylum and that simply arriving at a border crossing did not qualify.

A 2020 investigation by the Department of Homeland Security’s Office of Inspector General found that up to 680 migrants per day were turned around as a result of the policy. 

The Trump administration last year asked the high court to review a 2024 split decision from a panel of judges on the 9th U.S. Circuit Court of Appeals that affirmed a lower court’s order finding the policy violated administrative procedure law. 

The lower court found that the “turn back policy” was illegal because CBP had a duty to inspect and process asylum seekers arriving at ports of entry. 

The Supreme Court said in November it had decided to take the case, Noem v. Al Otro Lado.

Border doesn’t count, government says

U.S. Solicitor General D. John Sauer argued in briefs that a person has only arrived in the country once they are on U.S. soil.

“In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” Sauer wrote. “An alien thus does not ‘arrive in’ the United States while he is still in Mexico.”

He also argued that the appeals court decision interferes with the president’s “ability to manage the southern border” and set immigration policy.

“Before this litigation, border officials had repeatedly addressed migrant surges by standing at the border and preventing aliens without valid travel documents from entering,” Sauer said. 

“The decision below declares that practice unlawful, on the theory that aliens stopped on the Mexican side of the border have a statutory right to apply for asylum in the United States and to be inspected by federal immigration officers.” 

“The decision thus deprives the Executive Branch of a critical tool for addressing border surges and for preventing overcrowding at ports of entry along the border,” he continued.

“For people fleeing persecution the stakes are literally life and death,” said Melissa Crow, one of the attorneys representing Al Otro Lado, an organization that provides legal and humanitarian assistance to refugees and migrants, and a class of asylum seekers, who spoke to reporters before oral arguments. 

No current or future implications

Crow, who has represented Al Otro Lado since the initial challenge to the metering policy in 2017, said “there is no reason to do this” because the policy the Trump administration is challenging has been defunct since the Biden administration ended it in 2021.

Because the federal government rescinded the metering policy before the lower court could enter a final judgment, the brief from Al Otro Lado argues that the challenge presented to the justices “thus has almost no present implications, and likely no future implications either.”

“The government nonetheless urges the Court to grant review just in case it decides at some point in the future to reinstate metering,” according to the brief from advocates.

The challengers of the policy also argue it could give the administration another tool in its immigration crackdown.

“While this case focuses on one defunct policy, we have no doubt the administration is seeking a decision that will give them even more leeway to restrict the rights of people fleeing persecution,” Crow said. 

Crow said she opposed the review by the justices, adding that “there are many other restrictions on the books that are preventing migrants from seeking asylum,” that should be addressed. 

The Rev. Liz Theoharis, the executive director at the Kairos Center for Religions, Rights, and Social Justice, also briefed reporters. She leads a coalition of 31 faith groups that have submitted a brief in support of the groups and asylum seekers challenging the Trump administration’s move to overturn a court decision that blocked the metering policy.  

“Every major faith tradition makes protecting the stranger a core value,” Theoharis said. “Protecting and welcoming the immigrant is one of Jesus’s first and most powerful teachings.”

The U.S. Supreme Court’s conservative justices on Monday appeared skeptical of the validity of mail-in ballots that arrive after Election Day, in a case that could potentially affect hundreds of thousands of voters during the upcoming midterm elections.

The high court heard arguments on whether federal law overrides a Mississippi law that requires mail-in ballots that are postmarked on or before Election Day to be counted as long as they arrive within five business days of the election. Fourteen states have similar laws, which extend a “grace period” to ballots that arrive through the mail after polls close.

Several conservative justices raised concerns with allowing ballots to arrive after Election Day, including whether voters could recall ballots once they’ve shipped them but before they arrive at election offices. Justice Brett Kavanaugh questioned whether late-arriving ballots risk undermining election confidence.

“‘The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry the election has been stolen,’” Kavanaugh said, quoting from an analysis by a New York University law professor.

The case comes before the Supreme Court at a moment of broader attacks against mail-in voting. Four Republican-led states eliminated their ballot arrival grace periods last year. And Congress is mulling proposals that would restrict voting by mail amid a sprawling debate in the U.S. Senate over legislation demanded by President Donald Trump that would impose sweeping new voter restrictions nationwide. That legislation, known as the SAVE Act, is unlikely to pass because of the filibuster.

The Republican National Committee is challenging Mississippi’s grace period law. The party contends a longstanding federal law that sets the Tuesday after the first Monday in November as Election Day for federal offices preempts state laws that allow ballots cast by Election Day, but received later, to count.

Paul Clement, an attorney for the Republican National Committee, argued the prospect that the outcome of an election could change because of ballots arriving after Election Day would be unacceptable to losing candidates. After the 2020 election, President Donald Trump demanded election officials not count ballots that came in after Election Day. States kept counting ballots.

“If you have an election and the election is going to turn on late-arriving ballots in a way that means what everybody kind of thought was the result on Election Day ends up being the opposite a week later, 21 days later, the losers are not going to accept that result. Full stop,” Clement told the justices.

Mississippi Secretary of State Michael Watson, a Republican who is defending the state law, argues that federal law allows ballots cast by Election Day to be received later. In legal filings, attorneys for the secretary argue both legal and historical precedent support his position. States may decide that voters have made their final choices when ballots are submitted to state officials rather than when they’re received, according to Watson.

On Monday, the justices appeared divided along ideological lines, with conservative justices skeptical of the grace periods and liberal justices more sympathetic. Conservatives hold a 6-3 majority on the court.

“It seems to me that we have a very long history of states having a variety of different ballot receipt deadlines, to include after Election Day,” said Justice Ketanji Brown Jackson, one of the court’s liberal members.

Mississippi Solicitor General Scott Stewart told the court the dispute is over whether Congress in an 1845 law blocked states from counting ballots cast by Election Day but received later. “No one challenged it until now,” Stewart said.

At least 725,000 ballots were postmarked by Election Day 2024 and arrived within a legally accepted post-election window, The New York Times has reported, citing election officials in 14 of 22 states and territories where late-arriving ballots were accepted that year.

About 30% of voters cast a mail ballot in 2024, according to data gathered by the U.S. Election Assistance Commission.

The 5th U.S. Circuit Court of Appeals ruled in October 2024 that federal law requires ballots to be received by Election Day. Trump likewise issued an executive order last year that attempted to require that mail ballots be received by the end of Election Day and to impose other election changes, but much of the order has been blocked by federal courts.

Rick Hasen, a professor and director of the Safeguarding Democracy Project at the University of California-Los Angeles School of Law, wrote on his Election Law Blog that it was clear from Monday’s arguments that the Supreme Court will be closely divided, “and the case could come out either way.” A decision is expected later in the spring or early summer.

Caleb Hays, chief policy counsel at the Center for Election Confidence, a conservative-leaning legal advocacy group that opposes ballot grace periods, said his organization was pleased that the justices appeared to pick up on the need for a clear end to the voting period. He also welcomed the justices raising the issue of recalling ballots when they are delivered through the mail or by a third-party service like FedEx.

“That brings into question some of the arguments we saw from (Mississippi) on a ballot being final when it is cast and cast includes when it is deposited in a mailbox,” Hays said in an interview.

As the legal challenge made its way through the courts over the past two years, some Republican-led states moved to eliminate their grace periods. Kansas, North Dakota, Ohio and Utah last year moved to require all or nearly all ballots to be in the hands of election officials on Election Day to count.

The states that continue to extend grace periods for ballots arriving after Election Day are Alaska, California, Illinois, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, Oregon, Texas, Virginia, Washington and West Virginia, along with the District of Columbia.

Some local election officials have urged the Supreme Court to uphold ballot grace periods. A decision that strikes down state laws’ grace periods would increase the administrative burdens on many election officials, said a collection of election officials and local governments in California, Massachusetts and Washington in an amicus brief.

“(Grace periods) enable administrators in large and small jurisdictions to do their essential work in a timely and reasonable manner,” the brief says.

If the Supreme Court requires that ballots must arrive on or before Election Day, Clement suggested election officials would have enough time to prepare ahead of November. He said such a decision wouldn’t violate the Purcell principle, a Supreme Court doctrine holding that major changes to election policy and practice shouldn’t be made just before an election because voters could get confused. 

The federal law at issue pertains to general elections, not primary elections, he noted — meaning the court’s decision would apply only to the November election.

“There’s plenty of time,” Clement said.

Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.

WASHINGTON — Arizona coffee roaster Gabe Hagen is wondering if he’ll ever recoup the tens of thousands of dollars he paid in tariffs to import beans from the world’s major coffee-growing regions in South America, Africa and the Indo-Pacific.

Weeks after the U.S. Supreme Court struck down President Donald Trump’s emergency tariffs as illegal, Hagen is among an army of small business owners who are unsure if they’ll be made whole after a year of increasing costs and uncertainty.

“I’m in the process right now trying to consolidate all of my invoices … because I need the money back — if they’re going to give it back,” Hagen told States Newsroom in an interview.

“A pallet of coffee would cost us 5 to 6 to $7,000 if we had a bag or two of really high-grade in there. Post tariffs, our cheapest pallet was around $8,000, and it went anywhere from 8 to $10,000 or $11,000 per pallet of coffee,” he said. 

How the government will refund the roughly $166 billion in tariffs Trump triggered under a 1970s emergency economic powers statute is slowly coming to light in court documents. 

Nearly 2,000 companies filed suit for tariff refunds in the U.S. Court of International Trade, with many lining up even before the highly anticipated 6-3 Supreme Court decision.

U.S. Customs and Border Protection’s four-step refund process for businesses is anywhere from 40% to 80% complete, depending on the step, according to a court-mandated update filed March 12 with the Court of International Trade. 

Justices leave it to the lower courts

The justices, not giving guidance on refunds, left the matter to the lower courts in their Feb. 20 ruling that invalidated the sweeping tariffs Trump unilaterally imposed under the 1977 International Emergency Economic Powers Act, or IEEPA. 

The president declared various emergencies under the statute during his first year in office. 

From fentanyl smuggling, to trade imbalances, to political disputes, he used each declared crisis to impose steep taxes on imports. 

Shifting sometimes day to day, tariffs reached as high as 50% on Brazilian and Indian goods after Trump declared emergencies over the prosecution of a political ally and over the use of Russian oil, respectively.

U.S. importers saw tariffs spike as high as 145% on Chinese goods during a tit-for-tat trade war sparked by Trump’s declaration of a trade imbalance emergency. The duties largely settled at a roughly 50% effective rate on several products after the trade war and negotiations with the world’s second-largest economy. 

The Trump administration has since sought different pathways to collect tariffs, including almost immediately instituting temporary import taxes under a different 1970s trade statute. 

The Office of the U.S. Trade Representative has also commenced widespread investigations into dozens of the largest U.S. trading partners that could trigger new tariffs, depending on findings.

‘Survived, but barely’

The rollercoaster ride was enough to almost bring down Busy Baby, a Minnesota-based baby product company that manufactures several patented designs in China.

Busy Baby owner Beth Benike, who shared her experience with States Newsroom in February, is now suing U.S. Customs and Border Protection Commissioner Rodney Scott and U.S. Treasury Secretary Scott Bessent to recoup money lost.

Matthew Platkin, former New Jersey attorney general and Benike’s lawyer, said Benike’s business “survived, but barely.” 

“She had to keep merchandise overseas because she couldn’t afford to pay to bring them here. And when she didn’t get product, she wasn’t getting paid, she wasn’t making money,” Platkin said in an interview with States Newsroom.  

“She had opportunities lined up for expansion. She was going to hire new folks. That didn’t happen, and that was because of one thing: the president’s illegal tariffs,” he said.

Benike’s complaint does not specify a dollar amount, but Platkin said, “It’s substantial, especially for a business of her size.”

“We’re still going through and assessing the full impact of the tariffs on her, but rest assured, even for a small business, it’s tens of thousands of dollars at a minimum,” Platkin said.

“The federal government should just refund these folks their money with interest, period. Like, this shouldn’t even require litigation. They were caught taking illegal tariffs from millions of businesses,” he said.

$166 billion collected

Federal Judge Richard Eaton, who sits on the bench for the Court of International Trade, ordered administration customs officials in early March to stop collecting the tariffs deemed illegal under IEEPA, and to recalculate any past duties that included them.

Eaton granted the March 5 order in the tariff refund lawsuit brought by Atmus Filtration, a Nashville, Tennessee-based company. 

The judge, however, outlined that orders in the Court of International Trade are “universal” for all tariff refunds owed — meaning the trade cases are not subject to the Supreme Court’s 2025 finding in a separate immigration case that universal rulings are impermissible.

Businesses the size of Busy Baby to behemoths like Costco and FedEx have paid tariffs to the U.S. government. Many, but not all, have sued.

Customs officials, in a March 6 court filing, declared any refund process would take at least 45 days to be functional. According to the filing, as of early March the agency had collected approximately $166 billion in IEEPA tariffs from 330,000 American importers.

Alfredo Carrillo Obregon, research associate for trade policy at the libertarian Cato Institute, said as the clock ticks on tariff refunds, interest is accruing.

“The refunds are not necessarily coming soon and that has big implications, obviously, for taxpayers, but I think most importantly for the companies that are relying on this money to literally keep their doors open,” Obregon said.

He and colleagues calculated the government’s interest payments on the refunds owed totals about $700 million more with each passing month.

Barton O’Brien, who told States Newsroom last month his dog apparel company ate the tariff costs rather than raise prices, said he’s “certainly not counting on a refund anytime soon” as the administration “seems pretty dead set” on not giving them.

“I expect they will drag out the process in the courts for as long as they can,” he said in a written response to States Newsroom on March 9. “If we get one, great… It’s a bonus. But still won’t cover the hole left by the tariffs.” 

“Also, as a small business we’re not in a position to fight the administration, so I’m happy to sit back and let … other Fortune 500 companies with an army of lawyers fight this one out on our behalf.  If they win, we’ll all get refunds,” said O’Brien, who works with manufacturers in China and India.

‘Do the right thing’

Shawn Phetteplace, national campaigns director for the advocacy group Main Street Alliance, said his organization will continue to apply legal and public pressure to ensure small businesses recoup the money.

“I would just say that the administration should do the right thing and return the money, and they also should stop trying to find cute, creative ways to institute new tariffs that are also going to be illegal and struck down,” he said.

Two dozen Democratic-led states have already sued the administration in the Court of International Trade over the new tariffs Trump announced immediately after his Supreme Court loss. 

The lawsuit, led by Oregon, also includes Arizona, Colorado, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, Rhode Island, Virginia, Washington and Wisconsin.

Small businesses and Democratic-led states were instrumental in the Supreme Court’s February decision striking down Trump’s IEEPA tariffs.

States Newsroom reached out to the Trump administration for comment but did not receive a reply.

WASHINGTON — The U.S. Supreme Court Monday said it will hear oral arguments in April in two cases brought by immigrants hailing from Syria and Haiti after the Trump administration tried to end their temporary protections, initially granted because their countries had been deemed too dangerous for return. 

Monday’s order consolidates two cases, one brought on behalf of 6,000 Syrians with Temporary Protected Status and another from 350,000 Haitians. 

The justices also declined to grant the Trump administration’s request to stay a lower court order that prevented the end of TPS for those two countries, meaning that protections from deportation will remain for now for those immigrants. 

The justices will hear arguments for the cases in the last week of April, with final briefs due by April 20. A specific date has not yet been set.

Congress created TPS to allow immigrants from countries dealing with war, natural disasters, political violence or other instabilities to remain and work in the United States on a temporary basis, ranging from six months to 18 months. 

The TPS holders who sued the Trump administration have argued that their countries’ conditions were not considered when the Department of Homeland Security determined their protections should end. 

The Trump administration has sought to cancel legal protections for immigrants, so far revoking TPS status for 13 of the 17 countries that were designated at the start of President Donald Trump’s second term. 

Those 13 countries are Afghanistan, Cameroon, Ethiopia, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Syria, Venezuela and Yemen.  

The four remaining countries with TPS expiring this year without an extension are El Salvador, Lebanon, Sudan and Ukraine.

WASHINGTON — Senate Democrats sent a letter to Treasury Secretary Scott Bessent on Friday demanding the administration refund businesses that paid tariffs to import goods into the United States under authority the Supreme Court has ruled the president never held. 

“The American people — small business owners, importers, manufacturers, and the consumers who ultimately bore the cost of these illegal taxes — deserve better than this stonewalling,” the group wrote. “This money does not belong to the federal government. It belongs to the businesses and individuals you illegally taxed.”

The Supreme Court ruled on Feb. 20 that President Donald Trump wrongly instituted tariffs under the International Economic Emergency Powers Act, writing “that IEEPA does not authorize the President to impose tariffs.” 

Trump held a press conference later that day declaring he would institute tariffs under other authorities that he and members of his administration believe Congress has granted the president. But he didn’t give a clear answer about whether the federal government would refund the businesses that paid IEEPA tariffs.

“They take months and months to write an opinion, and they don’t even discuss that point,” Trump said at the time. “I guess it has to get litigated for the next two years.”

Senate Democrats’ letter says the Trump administration “collected over $130 billion in illegal taxes and then refused — with a smile and a shrug — to give it back.”

Democrats wrote in the letter the administration must tell U.S. Customs and Border Protection “to begin processing automatic refunds for all tariffs and customs duties unlawfully collected under IEEPA since January 20, 2025.”

The Trump administration, they wrote, should release a timeline within 90 days for when it would begin those refunds. 

The letter was signed by Senate Minority Leader Chuck Schumer, Whip Dick Durbin, Maryland Sen. Angela Alsobrooks, Connecticut Sen. Richard Blumenthal, Delaware Sens. Chris Coons and Lisa Blunt Rochester, Illinois Sen. Tammy Duckworth, New York Sen. Kirsten Gillibrand, Colorado Sens. Michael Bennet and John Hickenlooper, Hawaii Sen. Mazie Hirono, Virginia Sens. Tim Kaine and Mark Warner, New Jersey Sen. Andy Kim, Minnesota Sen. Amy Klobuchar, New Mexico Sen. Ben Ray Luján, Oregon Sens. Jeff Merkley and Ron Wyden, Rhode Island Sens. Jack Reed and Sheldon Whitehouse, Nevada Sen. Jacky Rosen, California Sens. Adam Schiff and Alex Padilla and Georgia Sen. Raphael Warnock.

The Treasury Department did not respond to a request for comment.

The Supreme Court announced Monday that it will hear a significant climate lawsuit in which oil companies are seeking to avoid being tried in state court. 

The fate of several dozen climate lawsuits brought against oil companies by state and local governments could hinge on the decision, which could determine whether the cases can be tried in state court. The suits seek to force oil companies to pay billions of dollars to help governments grapple with the costs of climate-related damages, such as natural disasters, rising sea levels and drought.

Exxon Mobil Corp. and Suncor Energy Inc., which have been sued by the city and county of Boulder, Colorado, argue the case should be dismissed because they followed national regulations when extracting and selling their products. Oil companies have claimed that federal rules around greenhouse gas emissions should preempt efforts to sue them under state laws.

Some oil companies have previously attempted to have climate cases removed to federal courts, petitions that have been denied by federal circuit courts and the Supreme Court.

But the roughly three dozen state and local governments that have sued oil companies in recent years argue that the cases belong in state court. Many of the lawsuits cite state consumer protection and fraud laws, along with evidence that the companies knew about the risks of climate change while downplaying it in public.

“We had hoped that the Supreme Court would let the decision of the lower courts rest, but we’re also confident in our case and looking forward for the chance to have it heard,” Boulder Mayor Aaron Brockett said in an interview. “I do think it’s a significant case. If the motion to dismiss is not granted, then we can get into discovery and learn exactly what Exxon and Suncor knew and when they knew it.”

The states of California, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Minnesota, New Jersey, Rhode Island and Vermont, as well as many more cities, counties and tribes, have all filed lawsuits against oil companies over climate change. 

If the Supreme Court were to rule that the Boulder case is preempted by federal law, it would be a major win for oil companies, who have long claimed that national regulations such as the Clean Air Act should supersede state laws. Such a ruling could also prevent many of the other cases from moving forward in state courts.

The case could also be complicated by the Trump administration’s recent repeal of the endangerment finding, the scientific determination that underpinned the federal government’s regulations of the greenhouse gases that cause climate change. With the feds stepping back from climate regulation, some observers believe the oil companies will have a harder time claiming that state lawsuits fall under the scope of federal policy.

In a written statement to the U.S. Environmental Protection Agency prior to the repeal of the endangerment finding, a group of investor-owned electric utilities raised that concern. The Edison Electric Institute, in its letter to the agency, said that federal greenhouse gas emissions helped “protect the power sector” from legal claims by “displacing” lawsuits over companies’ role in contributing to climate change. 

“Should EPA remove its regulation of [greenhouse gases], it increases the likelihood that environmental non-governmental organizations, advocacy groups, citizen groups, and other parties will seek to bring new tort suits and other litigation to test the bounds of continued [Clean Air Act] displacement of federal common law,” the group wrote.

Editor’s Note: The story has been corrected to reflect that the Supreme Court in 2023 denied oil companies’ attempts to remove the case to federal court.

Stateline reporter Alex Brown can be reached at abrown@stateline.org. 

WASHINGTON — President Donald Trump said Friday he plans to keep tariffs in place using different authorities after the Supreme Court ruled he exceeded his power under the International Economic Emergency Powers Act. 

During the afternoon press conference in the White House briefing room, Trump repeatedly criticized the six justices who wrote “that IEEPA does not authorize the President to impose tariffs.” 

“The Supreme Court’s ruling on tariffs is deeply disappointing and I’m ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what’s right for our country,” he said. 

Trump’s disdain of Chief Justice John Roberts as well as Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor did not stop there. 

He said the justices’ opposition to his tariff policies meant they were a “disgrace to our nation” as well as “unpatriotic and disloyal to our Constitution.”

Justices Clarence Thomas and Brett Kavanaugh wrote dissenting opinions. Justice Samuel Alito and Thomas joined Kavanaugh’s dissent.

Trump appointed Barrett, Gorsuch and Kavanaugh during his first term.

But, Trump said, the ruling would not change the tariffs he has implemented under IEEPA since he planned to institute the same tax on goods coming into the country under different laws. 

“The good news is that there are methods, practices, statutes and authorities as recognized by the entire Court in this terrible decision, and also as recognized by Congress, which they refer to, that are even stronger than the IEEPA tariffs available to me as president of the United States,” he said. 

Trump said he would sign an order later in the day to “impose a 10% global tariff under Section 122, over and above our normal tariffs already being charged.”

Trump didn’t commit to returning the tens of billions of dollars the U.S. government has collected from IEEPA tariffs, saying the ruling didn’t address that issue. 

“They take months and months to write an opinion, and they don’t even discuss that point,” Trump said. “I guess it has to get litigated for the next two years.”

Trump said he didn’t plan to ask Congress to pass any new laws or give the president broader tariff authority. 

“I don’t have to. I have the right to do tariffs. And I’ve always had the right to do tariffs. It has all been approved by Congress, so there’s no reason to do it,” he said. “All we’re doing is we’re going through a little bit more complicated process, not complicated very much, but a little more complicated than what we had. And we’ll be able to take in more tariffs.” 

Trump is set to address a joint session of Congress, which will likely be attended by many, if not all, of the Supreme Court justices, on Tuesday night. 

Trump said he “couldn’t care less” whether the justices attend the speech, which is held in the House chamber. He said they are “barely” still invited, even though the president, who leads the executive branch, doesn’t hold the authority to exclude guests from either chamber of Congress, which makes up the separate but equal legislative branch.  

Justices can, however, choose not to attend. 

WASHINGTON — The U.S. Supreme Court dealt a major blow to President Donald Trump’s trade agenda Friday, ruling the tariffs he issued under the International Economic Emergency Powers Act are illegal.

In a 6-3 decision authored by Chief Justice John Roberts, the court said Congress alone holds the power to tax in almost all circumstances. The Trump administration’s argument that trade deficits and illegal drug imports granted it emergency power to levy tariffs was not justified, the court said. Tariffs are taxes on imported goods.

The Trump administration had argued that a provision in the law, known as IEEPA, that said the executive branch could “regulate” imports empowered the president to levy tariffs.

“Based on two words separated by 16 others (in the law)—‘regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time,” Roberts wrote. “Those words cannot bear such weight.”

Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson joined Roberts’ opinion. 

Justices Clarence Thomas and Brett Kavanaugh filed dissenting opinions. Thomas and Justice Samuel Alito joined Kavanaugh’s.

Kavanaugh’s dissent accepted the administration’s reading of the law and said it was not the justices’ role to decide a policy matter that has “generated vigorous” debate. 

“The sole legal question here is whether, under IEEPA, tariffs are a means to ‘regulate . . . importation,’” he wrote. “Statutory text, history, and precedent demonstrate that the answer is clearly yes: Like quotas and embargoes, tariffs are a traditional and common tool to regulate importation.”

New tariffs

Trump blasted the ruling at an afternoon press conference. Asked if he regretted nominating Gorsuch and Barrett, he said the decision was “an embarrassment to their families.”

He said the judges were “being politically correct” and catering to special interests rather than fairly interpreting the law.

He also said he would impose global 10% tariffs under a provision of the Trade Act of 1974, which  allows the president to unilaterally apply tariffs for up to 150 days.

“Today, I will sign an order to impose a 10% global tariff under Section 122 over and above our normal tariffs already being charged,” he said.

Tariffs were an important tool to balance the country’s trade and hold leverage over other countries, he said. 

‘Unchecked’ presidential authority

In the opinion of the court, Roberts wrote that Trump’s expansive use of the emergency tariff powers would upend the balance of powers between branches of government.

The administration’s position would empower the president “to unilaterally impose unbounded tariffs,” simply by declaring an economic emergency, Roberts wrote. Further, that declaration would be unreviewable and could be overturned only by a veto-proof majority in both houses of Congress.

That view “would replace the longstanding executive-legislative collaboration over trade policy with unchecked Presidential policymaking,” he wrote.

When Congress intends to convey that kind of power to the executive branch, it generally does so in uncertain terms, Roberts said.

“In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it,” he wrote. 

The government’s argument that IEEPA authorized that power, “falls short,” the opinion said. 

The chief justice added that it was telling that in the nearly 50 years since the IEEPA became law, no other president has read such broad powers into it.

What to do about the taxes that were collected?

The ruling opens a new debate about how to handle tariff revenue that the government has already collected since Trump first imposed the IEEPA tariffs a year ago.

Kavanaugh noted the likely confusion the issue would cause.

“The Court says nothing today about whether, and if so how, the Government should go about returning the billions of dollars that it has collected from importers,” he wrote. “But that process is likely to be a ‘mess,’ as was acknowledged at oral argument.”

U.S. Sen. Elizabeth Warren, a Massachusetts Democrat and prominent economic liberal, said that revenue should be sent to small businesses that were harmed by the imposition of tariffs.

“Any refunds from the federal government should end up in the pockets of the millions of Americans and small businesses that were illegally cheated out of their hard-earned money by Donald Trump,” she wrote in a statement.

Main Street Alliance, a national trade group representing small businesses, called for the revenue collected under the tariffs to be returned to small businesses.

“If the authority was unlawful, the collections were unlawful,” Executive Director Richard Trent said in a statement. “Every penny taken from small businesses under this framework should be returned.”

Attention turns to Congress

With the court ruling that taxing power lies with Congress, efforts to codify the tariffs Trump had applied could become a priority for Republican lawmakers.

“No one can deny that the President’s use of tariffs has brought in billions of dollars and created immense leverage for America’s trade strategy and for securing strong, reciprocal America-first trade agreements with countries that had been taking advantage of American workers for decades,” House Speaker Mike Johnson, a Louisiana Republican, wrote on social media. “Congress and the Administration will determine the best path forward in the coming weeks.”

Adrian Smith, a Nebraska Republican who chairs the House Ways and Means Committee’s subpanel on trade, said Congress should work with the president to legislate tariffs.

“Nebraska’s farmers, ranchers, and manufacturers create world-leading products and deserve reliable access to global markets,” he said. “I am committed to working with the administration to deliver long-term certainty through comprehensive and enforceable trade agreements. The President has made clear his intention to use every available tool to secure strong deals, but only Congress can ensure that these agreements provide lasting stability beyond any single administration.”

Ohio Republican Sen. Bernie Moreno, though, said in a social media post that the ruling would severely hamper efforts to rebalance trade, and called for Congress to codify the tariffs.

“SCOTUS’s outrageous ruling handcuffs our fight against unfair trade that has devastated American workers for decades,” he wrote. “These tariffs protected jobs, revived manufacturing, and forced cheaters like China to pay up. Now globalists win, factories (sic) investments may reverse, and American workers lose again. This betrayal must be reversed and Republicans must get to work immediately on a reconciliation bill to codify the tariffs that had made our country the hottest country on earth!”

Democratic lawmakers praised the court’s decision, while blasting the tariffs as a matter of policy.

“This is a win for the wallets of every American consumer,” Senate Minority Leader Chuck Schumer, D-N.Y., said. “Trump’s chaotic and illegal tariff tax made life more expensive and our economy more unstable. Families paid more. Small businesses and farmers got squeezed. Markets swung wildly. We’ve said from day one: a president cannot ignore Congress and unilaterally slap tariffs on Americans. That overreach failed.”

Sen. Jeff Merkley, the ranking Democrat on the Senate Budget Committee, called the decision “a win for farmers, small businesses, and hardworking, middle-class families across the country,” he said in a statement. 

“Trump’s illegal and chaotic tariffs have harmed American consumers and businesses, leaving them to foot the bill for rising prices due to Trumpflation,” the Oregon Democrat added. “While Trump continues his ‘families lose, billionaires win’ agenda, we’re using every tool at our disposal to fight back against his reckless policies and build an economy where families thrive, and billionaires pay their fair share.”

Arguments were heard in November

The justices heard arguments in early November in what was the first major case of the second Trump term to move beyond the court’s emergency docket and be heard on the merits of the case.

Small businesses and Democratic state attorneys general led the legal challenges against Trump’s tariffs in the two separate cases, consolidated before the Supreme Court. They alleged Trump usurped taxing power, which belongs to Congress as outlined in Article I of the Constitution.

Victor Schwartz, founder and president of the family-owned, New York-based wine and spirits importer VOS Selections led the small business plaintiffs, which included a Utah-based plastics producer, a Virginia-based children’s electricity learning kit maker, a Pennsylvania-based fishing gear company and a Vermont-based women’s cycling apparel company.

State attorneys general who sued included those from Arizona, Colorado, Maine, Minnesota, Nevada, New Mexico and Oregon.

Two Illinois-based toy makers that primarily manufacture products in Asia filed a separate challenge.

For nearly three hours on Nov. 5, the justices dissected the language of IEEPA, a 1970s-era sanctions law that Trump invoked during the first year of his term in a series of emergency declarations and proclamations triggering import taxes on goods from nearly every country.

The high-profile case drew Cabinet officials to the court, including Treasury Secretary Scott Bessent, who sat shoulder-to-shoulder with Commerce Secretary Howard Lutnick and U.S. Trade Representative Jamieson Greer. 

Members of Congress also attended. Among the crowded rows were U.S. House Ways and Means Chairman Jason Smith, R-Mo., Sen. Mike Lee, R-Utah, and Democratic Sens. Amy Klobuchar of Minnesota and Ed Markey of Massachusetts.

‘Liberation day’

Trump began imposing tariffs under IEEPA via executive order in February and March on products from China, Canada and Mexico, declaring the countries responsible for illegal fentanyl smuggled into the United States.

The president escalated the emergency tariffs April 2, which he dubbed “liberation day,” when he declared trade imbalances a national emergency. In addition to a new baseline 10% global tariff, Trump announced hefty additional duties on products from countries that export more goods to the U.S. than they import from U.S. suppliers.

The White House calculations baffled economists, as the administration proposed steep duties on close trading partners — including 20% on products from the European Union, 25% on South Korea, 32% on Taiwan and 46% on Vietnam. 

Inexplicably he also announced a 50% tariffs on goods from the landlocked, 11,000-square-mile African nation of Lesotho, and 10% on the Heard and McDonald Islands, only inhabited by penguins and seals.

Trump’s announcement crashed markets, wiping trillions of dollars away in just a matter of days. He relented and delayed most of the tariffs, but escalated a trade war with China — shooting up the levy to 125%, and eventually to 145%.

The administration’s trade war with China cooled a bit in May, but left the rate on some products at an effective 55%.

Trump maintains his tariffs have forced the hand of other governments to invest in the U.S. in exchange for lower tariffs. For example, Trump officials claimed victory in a framework deal with Japan that lowered duties on Japanese products to 15%, from 25%, with a promise from Japan to invest $550 billion in the U.S.

As recently as late August, Trump imposed an extra 25% tariff on goods imported from India, bringing the total tariffs on Indian products to 50%, because of the country’s usage of Russian oil. 

In early August, Trump slapped a 40% tax on all Brazilian goods after he disagreed with the country’s prosecution of its former right-wing President Jair Bolsonaro for plotting a coup to remain in power in 2022.