The Current - Will the U.S. Supreme Court stop Trump's tariffs?

Episode Date: November 4, 2025

On Wednesday, the Supreme Court will hear the challenge to Donald Trump's use of emergency tariffs. But Canadians probably shouldn't hold their breath waiting for the court to come to its rescue, says Atlantic writer and lawyer Paul Rosenzweig.

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This is a CBC podcast. Hello, I'm Matt Galloway, and this is the current podcast. Tomorrow, the U.S. Supreme Court will hear a case that centers on something Canadians care deeply about, that something is tariffs. President Donald Trump has used emergency powers to swiftly impose the import taxes on trading partners around the world, including on our country. The Supreme Court will now weigh in on whether or not. those broad-based tariffs are legal. Paul Rosenzweig is a lawyer based in Washington, D.C. He also writes about the law and politics for The Atlantic Magazine.

Paul, good morning. Good morning. How are you? I'm great. It's nice to have you with us. Can you first just explain what's sort of at the heart of this case? Well, the core of this case is a law that affords the president of the United States emergency economic powers to impose restraint on forms of trade. The classic case of its use here in the United States involved President Jimmy Carter's freezing of Iranian assets in the wake of the overthrow of the Shah and the seizure of the

American embassy. That kind of emergency is what it was contemplated by the discretion that is embodied in this law. What is at the core of today's case or tomorrow's case is President Trump's effort to convert that rare emergency authority into more or less a moving feast where any emergency he chooses to define can justify the imposition of tariffs of any sort that he desires for non-economic purposes, for political purposes. And so outside of court, we've heard Trump say this for months now. It has to do with national security and all these things. Inside court, they're going to have to make legal arguments. So what are they going to argue? Well, the core of the president has made a number

of arguments in support of various tariffs. The two tariffs that are before the court tomorrow involve an emergency declaration that the fentanyl flow into the United States is a national security emergency. It was on that basis that he initially imposed tariffs on Mexico and Canada. Yeah, fentanyl, yeah. The second, yeah, fentanyl, not fentanyl, fentanyl, sorry. And the second of those was an even more ambitious, I would say. That's the polite way of phrasing it. declaration that America's overarching trade deficit with the United States, outside the United States, which has obviously been persisting for many, many years, has become a national security emergency,

justifying the imposition of tariffs on essentially every other country in the world as a means of reducing the trade deficit. And so just to be clear, these are not, for our listeners, these are not the sectoral tariffs that Trump has imposed. on Canada's auto aluminum steel industries. These are those so-called Liberation Day tariffs that he imposed on countries around the world. Everyone will remember him going up there with the sign with all the countries listed. Canada does have some of those tariffs, and we'll talk about those in a bit.

But so that's what the Trump administration is going to argue in court. Who's up against them? Well, the lead plaintiffs in this case, actually the respondents in the Supreme Court since they won below. are a coalition and a group of small businesses and business trade associations, all of whom are aggrieved by the imposition of these tariffs. I was reading just today that the price of pasta is going to go up roughly 100% over the next several weeks. And so it is people like that who are importers of goods from outside the country, whether it's lumber from Canada or pasta from Italy or, you know, who knows what? The tariffs are pretty comprehensive. The particular plaintiffs

involved here are a small business that does furniture, I think it is. But they are representative of a much larger class of people who've had the tariffs imposed upon them and made their prices on competitive. And so, Paul, you well know, everyone well knows that Donald Trump loves tariffs. He has for a long time. He talks about how much he loves tariffs, how he's going to use him, how he's going to continue to use him, how he thinks are so great for your country. What's at stake then for President Trump with this case? Well, I mean, there are two things at stake, actually, I think. The first is, obviously, his authority to impose tariffs as part of his personal economic theory of global trade, right? If they decide that these are not unusual and

extraordinary threats, that's the language of the statute, then the Liberation Day tariffs will be rescinded, and he'll have to try and find a way to impose tariffs through, other more narrowly tailored means like some of the sectoral tariffs that you mentioned. But I think at a much broader remove, but much more fundamentally, what's at stake for Trump is his authority to declare emergencies more generally and use that emergency declaration as a justification for sending troops into American cities or destroying drug cartels. boats in the Caribbean and Pacific oceans. If the

Supreme Court decides that presidential emergency declarations are subject to review and even if deferential must be grounded in some sort of factual basis and rejects the tariffs, then that portends

ill for his efforts to declare an emergency, a crime emergency in Washington, D.C., which is the grounds for his National Guard deployment in the capital. Conversely, if the Supreme Court winds up deciding that presidential emergency declarations are not subject to review or are subject to such a deferential standard of review that a declaration of emergency based upon a trade deficit of 80 plus years is okay,

then that means that essentially the court will have ceded the field of governance to the president almost completely. And his authority, for the next three years of his presidency will essentially be unchecked and uncheckable. Paul, this, of course, has reached the Supreme Court level. The lower courts have declared the tariffs illegal. So is this case clear cut, or does the Supreme Court, I don't know, have room to side with the federal government? Well, I would have thought it was clear cut. But the fact of the matter is that, you know, the Supreme Court's composition is less reflective of what the lower courts are than it used to be.

And this court has shown a remarkably deferential strain to its other rulings on Trump's activities. It is quite plausible to me that five votes might exist. for the view that judges are not capable of, not in a position to review national security determinations by the president, which is generally, you know, one might think the right answer. We don't want the court deciding whether or not we should go to war with Iraq or something like that. But in this case, that would open up a loophole that the president could drive a truck through. So it seems to me like this should be a reasonably easy case, but nobody makes much money predicting what this Supreme Court will do. Yes, because of course this Supreme Court

has a lot of Trump appointees and on a lot of other issues where people might argue that it's pretty clear cut. They have sided with the administration. Donald Trump said, I think a few days ago, Paul, that, hey, I might even show up at the Supreme Court hearing. We don't know if he will, but Scott Besson, the Treasury Secretary says he's going to attend. He's going to be there. Front row, he said, at the hearing. Could that be seen, or how might you interpret that? Could that be seen as potential intimidation? I know the judiciary is not to be intimidated and all those things and can step away from that. But what does that look say to you? Well, I mean, I think it actually cuts both ways to show.

show up is sort of intimidating and sort of threatening. And Trump has personalized a lot of his activities, particularly around tariffs, in a way that suggests that he would take a defeat quite personally and perhaps respond abusively. On the other hand, the court values its independence and its appearance of independence. And for the Treasury Secretary to show up, might be read by the court or might be felt by some members of the court as an inappropriate threat that if they were leaning one way or the other might motivate them to give less deference to the president than they had been inclined to do so, if only to appear to the general public not to be so much of a sock puppet for the Trump administration.

The Canadian interest in all of this, Paul, is, of course, wanting tariff relief. no matter what the court rules, should Canadians expect that the outcome of this case will give us what we want, which is some tariff relief? Well, if the court rules against Trump's broad-based Liberation Day and Fennettal tariffs, that will likely give Canada some measure relief in the long run. There will be, of course, a lot of implementation problems as people sue to get the tariff money that they've already paid back. My expectation is that if he, if that door is closed to him, Trump will not take the defeat lightly and he will likely try to find other more specific and narrow gauge ways of imposing tariffs on people he doesn't like. And so, and Canada has, of course, been in his sights since the first day of his administration when he decided that you should become our 51st state.

and so I would say that Canadians will get some relief, but that they should not expect this to be a panacee. Okay, Paul, we'll leave it there. Thank you for your perspective. Appreciate it. Thanks for having me on. Paul Rosenzweig is a lawyer based in Washington. He also writes for The Atlantic Magazine.

This has been the current podcast. You can hear our show Monday to Friday on CBC Radio 1 at 8.30 a.m. at all time zones. You can also listen online at C. CBC.ca.ca slash the current or on the CBC Listen app or wherever you get your podcasts. My name is Matt Galloway. Thanks for listening. For more CBC podcasts, go to cBC.ca slash podcasts.