Column | Rules of Law

As the Supreme Court takes up Trump’s tariffs, we had two conservative legal scholars fight it out on the issue.

Illustration by Claudine Hellmuth/POLITICO (source images via AP and Getty)

Ankush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice. His column, Rules of Law, offers an unvarnished look at national legal affairs and the political dimensions of the law at a moment when the two are inextricably linked.

The Supreme Court has been a crucial ally to President Donald Trump as he’s sought to ram his agenda through in his second term. He’s asking for backup yet again on Wednesday, when the court considers whether the bulk of his tariffs are legal — a historic question that will have vast consequences for the American public, Trump’s economic program and nations all over the world that have been subjected to the administration’s erratic and punitive tariff framework.

Trump’s effort has been panned by legal analysts across the ideological spectrum, including by many members of the conservative legal establishment who note Trump is relying on a law, the International Emergency Economic Powers Act (IEEPA), that makes no mention of tariffs, taxes or anything of the like, and that no prior president has ever used to impose tariffs.

The schism among conservative lawyers is one of several warning signs for the administration. If all three of the Democratic appointees on the court oppose the Trump administration’s effort, the government can afford to lose only one of the six Republican appointees. If two defect, that would be the whole ball game.

To hash out the dispute on the right, we convened two conservative legal scholars on opposing sides of the litigation.

Michael McConnell, a law professor at Stanford and a former judge on the U.S. Court of Appeals for the Tenth Circuit, firmly opposes the Trump administration’s effort, and over the summer signed on as one of the lawyers for the challengers before the Supreme Court.

Chad Squitieri, a law professor at Catholic University, comes down on the other side and filed an amicus brief in support of the Trump administration’s tariffs.

The debate got feisty at times, at least for a clash between law professors.

This conversation has been edited for length and clarity.

Panelists Grid

Ankush Khardori

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Senior Staff Writer and Columnist, POLITICO

Michael W. McConnell

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Law professor, Stanford University

Chad Squitieri

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Law professor, Catholic University of America

**You two have come to very different conclusions on the legality of the Trump tariffs, but so far as I can tell, you’re both textualists and originalists. Do I have that right? **

**McConnell: **Yes.

**Squitieri: **Yes.

Before we get to the nuts and bolts of the argument, I wanted to get each of your views — and I’ll start with you, Professor McConnell — on how significant you think this argument is and which justices you’re going to be particularly paying attention to.

**McConnell: **Because I’m actually a counsel on the case, I’m reluctant to talk about the justices. It’s just considered to be a little impolite. If I were in my purely academic capacity, I wouldn’t mind doing that.

Fair enough. Professor Squitieri, are you comfortable taking a swing at that?

**Squitieri: **I’ll say that the argument is important, because unlike a lot of other high-profile cases as of late, where the Supreme Court has had the opportunity to perhaps forecast its view in a preliminary status, the court has not had that same opportunity here. So I think the argument might be more important than some of the other recent high-profile cases.

McConnell: I think the oral argument in the court could be particularly important here, especially because the government makes a lot of very broad assertions in its brief that I think they’re unable to back up. And under questioning, I think that’s going to be revealed.

Professor Squitieri, do you think any of the Democratic appointees are actually gettable for the government? Or is this really about the government trying to get a majority within the six conservative justices?

**Squitieri: **Kind of like Professor McConnell, I don’t really like thinking of the justices in those terms.

I don’t think the Democratic appointees are gettable. I think this is really an argument about what the six conservative justices are going to do and whether five of them will support the Trump administration’s position.

**I respect that you two don’t want to be publicly venturing views on that, but everybody’s counting numbers, who’s gettable or not. **

**McConnell: **Can I jump in here with something? A useful thought experiment: Where would the justices come out if this had been President Biden imposing these tariffs?

Which is by no means an odd suggestion. The tariffs are not particularly ideological, one way or the other. At least for clarity and constitutional thinking, it’s often good to think, “Well, what if the shoe is on the other foot?”

The U.S. Supreme Court building is seen in Washington, on Oct. 17, 2025. | Francis Chung/POLITICO

I want to start with the statutory text of IEEPA. The law provides that after declaring a national emergency, the president can “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit any … importation or exportation of … any property in which any foreign country or a national thereof has any interest.”

As you both know, the statute doesn’t contain the words “tariffs,” “duties,” “customs,” “taxes” or any synonym. No other president has used it for tariffs in the roughly 50 years that the statute has been on the books.

Professor Squitieri, in broad strokes before we drill down to the particulars, what is your argument for why the statutory text permits Trump to impose these tariffs?

Squitieri: My argument is that for over 200 years, it’s been understood that the power to regulate foreign importation — foreign commerce via importation — includes a tariff power. The ordinary reading of the statutory phrase “regulate … importation” includes the traditional and well-known tariff power.

And I think the lower courts made a mistake when they insisted that tariff authority can only come from the Taxation Clause [of the Constitution]. That’s a mistake. Tariff authority can come from the Taxation Clause or the Foreign Commerce Clause.

Let’s grant for the moment that you’re right about that, but what is it about the statutory text of IEEPA itself? Is it simply the phrase “regulate importation,” and then the historical backdrop, from your perspective?

**Squitieri: **Correct. For 250 years, the phrase “regulate importation” has been understood to include tariff authority. So the ordinary reading of the statutory phrase “regulate importation” is presumed to include that authority.

A common example might be a statutory phrase referring to “the playing of professional sports.” It would be silly to say that that phrase does not include baseball, because baseball is a traditional and well-known professional sport. Similarly here, tariffs are traditional and well-known means of regulating importation.

Professor McConnell, what’s your response and your argument for why the statutory text of IEEPA precludes these tariffs?

**McConnell: **Congress has never — I mean not even once — authorized tariffs using the word “regulation.”

Professor Squitieri is right that tariffs, when [Congress authorizes them], can be used for regulatory purposes. But Congress has never used the word “regulation” to include tariffs or any other form of taxation.

**Professor Squitieri, you just referred to the historical understanding of the phrase. You write in your amicus brief that “[s]ince the Founding, it has been understood that tariffs can be imposed in an exercise of commerce-regulation power” and that there is “an embarrassment of riches” of historical evidence on this point. **

**Can you summarize some of the key pieces of historical evidence on this point and how you see their relevance today? **

Squitieri: The evidence actually goes back to the very founding of the country, with the revolutionary pamphleteers, the ones that we learned about who said, “No taxation without representation.” They distinguished parliamentary taxation from commerce-regulating tariffs. Then from the very first Congress, we have the Tariff Act of 1789, which imposes tariffs both from the Taxation Clause and from the Commerce Clause, with a desire to protect domestic manufacturing — infant manufacturing at the time — in the new country.

We also have a bunch of comments from very important legal thinkers from the founding generation. For example, James Madison refers to the tariff authority flowing from both the Taxation Clause and the Commerce Clause. We have Chief Justice [John] Marshall and a very important Supreme Court opinion in the early 1800s saying that the founding generation understood tariffs as flowing from both clauses. We have Joseph Story, writing in the 1830s looking back at the last several decades of the new nation, saying that the laying of duties was a common means of exercising the authority to regulate foreign commerce.

Professor McConnell, how do you view the historical record here and its relevance to this dispute?

**McConnell: **All of that is completely irrelevant.

It might well be that the [Foreign Commerce Clause], as well as the taxing clause, could authorize Congress to act if Congress wants to impose tariffs. Both powers are vested in Congress. Neither power is vested in the president. So it really doesn’t matter.

What matters is, when Congress uses the word “regulate” in IEEPA, what are they referring to? And Congress has never used the word “regulate” or “regulation” to authorize tariffs or any other taxes. Never.

Squitieri: I do think it’s important to determine which clause the tariff authority is flowing from, because it has huge payoffs for the major questions doctrine and the nondelegation doctrine.

I totally agree with Professor McConnell that both the Taxation Clause and the Commerce Clause, of course, vest constitutional authority in Congress. But Congress can delegate its various authorities to the president, and it’s much easier under current doctrine to do so when it’s a delegation of the commerce clause authority as compared to the domestic taxation clause.

McConnell: I’d like to know what the authority is for that statement, because the court has never said that.

**Squitieri: **In a very important decision called Curtiss-Wright, the court made clear that Congress can delegate more easily to the president in the foreign affairs context.

Also, just looking at the history of the various powers, as Professor McConnell has written in his book, not all of the powers vested in Congress are purely legislative. Some of those powers historically belonged to the king, and the regulation of foreign commerce falls into that camp. The theory on originalist grounds is that those powers can be more easily delegated back to the president, given their historical nature.

Then, on the major questions doctrine, the logical underpinnings of that doctrine do not apply in the foreign context the way that they apply in the domestic context. There’s a lot of support for drawing distinctions between the delegations.

**McConnell: **I do think it’s true that both the nondelegation doctrine and the major questions doctrine apply with less force when Congress is supplementing authorities that the president already has under the Constitution.

But the president has no authority under the Constitution — zero — to impose taxes on his own authority.

So yes, many foreign affairs powers are vested in the president under the Constitution, but not the power to impose taxes, duties, excise taxes on Americans. Never.

Squitieri: I think that’s why it’s very important to recognize the distinction between taxation and foreign commerce regulation.

Yes, the president does not have domestic taxation authority, but the president acts on the nation’s behalf on the world stage. So when we’re talking about foreign commerce regulation, the president does have some inherent foreign authority that pairs nicely with the delegation of foreign commerce regulation power.

**McConnell: **These taxes are imposed on American companies. My clients are paying these taxes.

They are not foreign governments — they are American citizens — and they are being taxed without Congress passing such a law, and that has never been tolerated in the entire history of our Republic.

I want to go back to the statutory language here and, Professor Squitieri, push you a little bit on the originalist point here.

If I understand the structure of your argument correctly, we have this phrase in the statute: “regulate importation.” If we take that phrase and we see how others around the founding of the nation used it — or in the years following the founding used it — then that interpretation supports the notion that that phrase can include the imposition of tariffs.

But I see no evidence — and correct me if I’m wrong — that anyone in the 20th century in Congress ever held that view, that the phrase “regulate importation” includes tariffs.

This is a very common question for originalists, but how much should we care about a handful of scattered references around the founding?

**Squitieri: **You are right that the relevant analysis is to look at what time the statute was enacted, in the 1970s, but the lower courts refer to various dictionary definitions from that era. And they demonstrate that the historical understanding of tariffs as being a means of regulating commerce had not changed by the time of the 1970s.

Further, just a few years before the statute was enacted, the same statutory language “regulate importation” was interpreted by the highest court to reach the question to grant the president tariff authority.

Another factor, too, is that by the time of the 1970s, tariffs were more often seen as a means of regulation than they were as a means of tax revenue. So if anything, the historical setting of the 1970s leans more in favor of the president’s position here.

**You’re referring to the Yoshida decision, where you have a court interpreting the same words in a way that aligns with your position, but I want to set out, for our readers, the timeline of events during the 20th century. And then Professor McConnell, I’m going to give you an opportunity to weigh in. **

In 1917, Congress passed the Trading with the Enemy Act, authorizing the president to “regulate” the “importation” of foreign goods in response to World War I.

**In the following decades, Congress passed a series of laws that explicitly delegate tariff-setting authority to the president under certain circumstances. Those statutes have not been invoked by the Trump administration. **

Then, in the ’70s, we get to Yoshida and this somewhat convoluted set of events.

In 1971, President Nixon imposed a 10 percent tariff under TWEA for about five months. An importer sued for a refund on the theory that Nixon lacked the authority to impose the tariff. In 1974, a lower court agreed.

The following year, we get the Yoshida decision, which was issued by the predecessor to the U.S. Court of Appeals for the Federal Circuit. That decision reversed the lower court — but with all sorts of qualifiers about the limited nature of Nixon’s tariffs and how they were not giving the president unlimited tariff authority. But there’s no question that that decision interprets the phrase “regulate importation” at that particular point in time to impart some sort of tariff-setting authority, at least enough to support President Nixon’s assertion.

**Then we get IEEPA in 1977 — the statute at issue here — and it includes the same language from TWEA authorizing the president to regulate the importation of foreign goods, albeit in the event of a declared emergency. **

Professor McConnell, what should we take away from this sequence of events in the 20th century — particularly in the ’70s around Yoshida?

**McConnell: **The government wants to look to legislative history in order to show that the word “regulate” is being used in this bizarre way that Congress has never used it. What it does is it looks to the history in 1971, but it only looks very selectively at that history.

What happened is that President Nixon imposed very limited tariff surcharges under the Trading with the Enemy Act, and the customs court holds that that was illegal, that there was no basis for that. It was contrary to the way the word “regulate” was always used.

Following which, Congress then passes one of the most landmark trade statutes in its history — the Trade Act of 1974 — which says a lot of important things. One thing that it does is that it actually gives the president, for the first time, a limited authority to impose tariff surcharges of the sort that Nixon did — limiting that to 15 percent surcharges and 150 days.

President Richard Nixon | AP

So, Congress responds to Nixon’s action and the customs court decision with a new statute, then along comes the court of appeals in the case. By this time, the issue of whether Nixon’s tariffs were still on the books is no longer significant, except for the question of whether the importers will get a refund of the tariffs that they have already paid.

The Court of Appeals does say that the term “regulate importation” in TWEA was broad enough to encompass these extremely narrow [tariffs]. There’s a whole section of the opinion talking about how narrow and confined Nixon’s tariffs were — they only lasted five months — and they were only 10 percent, and they conformed exactly to Congress’ tariff schedules.

But on top of that, the Court of Appeals explicitly says that going forward, these issues will be governed by the Trade Act, especially section 122 of the Trade Act, which gives the president very limited authority: namely, 15 percent and 150 days.

So if the government wants to say that the term “regulate” should be interpreted in light of what that court said, [then] going forward these issues are governed by the Trade Act and not by IEEPA.

Professor Squitieri, do you want to weigh in? This is a very strange sequence of events. It’s an odd, anomalous litigation.

**Squitieri: **The Yoshida decision only plays a small role in the government’s theory. The theory is not that IEEPA somehow codified the Yoshida decision. The theory is that the term “regulate importation” — the ordinary meaning of that term — includes tariff authority. And we have evidence from the highest court to reach the issue at that contemporary moment that says, “Yes, that is what the statute means.”

It’s just evidence of what the ordinary meaning of a statute is. I don’t think the court needs to at all get into theories about whether Congress codified that opinion or not.

**McConnell: **Except that is the government’s argument. It’s really the government’s only argument.

**Squitieri: **I disagree with that.

McConnell: The government cannot cite a single statute in which the term “regulate” has been held to allow taxation.

Now, you’re right: You cite lots and lots of cases where courts and important people say that tariffs can be used for regulatory purposes. But there is no evidence that the term “regulation” includes tariffs. The taxing power is very special, very important, inherently legislative and never given away to the president using terms that are not actually explicit.

**Squitieri: **Respectfully, I think there is an abundance of evidence that the phrase “regulate foreign commerce” includes tariff authority. And of course, foreign commerce is conducted via importation.

**McConnell: **Can you name one statute?

**Squitieri: **Sure, TWEA.

**McConnell: **That’s Yoshida.

**Squitieri: **No, well —

**McConnell: **Besides Yoshida, is there a single statute?

**Squitieri: **Professor McConnell keeps saying that there was no statute that ever used the phrase “regulate importation” to delegate tariff authority, but it just so turns out that the precursor statute to IEEPA was TWEA. Even if the Yoshida opinion did not exist, we would say the ordinary meaning of that phrase included tariff authority. It just so happens that the highest court to reach the issue says, “Yep, that statutory phrase does include tariff authority.”

So again, the argument is not hinging on Yoshida. The argument is hinging on the original meaning of [the statutory text]. It’s just very helpful and informative that there happened to have been a court to address this precise issue and say that, yes, those terms do include tariff authority.

Well, then I go back to my —

**McConnell: **Outside of TWEA, there is no other support for this. What matters is how Congress responded to the Nixon incident. And what it did is it responded with an entirely new Trade Act, which included very limited tariff authority for the president, limited to 15 percent in 150 days. That is now the law.

If we take Yoshida out of the equation, do we have any evidence in the 20th century that anyone in Congress actually thought that the phrase “regulate importation” imparted tariff-setting authority?

**Squitieri: **I think we would say in the 1970s — at that time, for 200 years — the phrase “regulate importation” had been understood as including tariff authority.

That’s because your evidence is 200 years old at that point in time. That does not mean that that interpretation was held over for those 200 years. So I’m asking, in the 20th century —

**Squitieri: **There’s no evidence to suggest that the unbroken historical evidence concerning what it means to “regulate importation” — there’s no evidence to suggest that, for some reason, in the 1970s Congress suddenly stopped thinking that. To the contrary, the only evidence available suggests that Congress continued in the unbroken understanding of tariffs as falling within the power to regulate importation.

**McConnell: **There is no such unbroken evidence. No president ever interpreted the statutes that way. There’s no evidence that Congress ever understood the statutes that way. And other than this odd incident involving Yoshida, no court ever understood the statutes that way.

**Squitieri: **Again, I think the historical evidence is very important, because we have Madison and Story looking back at what at that time was 40 years of unbroken practice. Everyone understood that the power to regulate importation included the authority to impose tariffs. There’s no evidence to suggest that that meaning somehow dramatically changed in the 1970s.

To the contrary, the evidence goes in the other direction. At that time, tariffs were more closely aligned with regulating rather than raising taxes. Of course, in the 1970s we had the income tax, and that changed how the government raises revenue. So the only evidence, I think, cuts against Professor McConnell’s position.

**McConnell: **But all of that evidence goes to whether tariffs — when Congress authorizes tariffs, can they do that for regulatory purposes?

None of that evidence suggests that the term “regulation” naturally includes tariffs or any other taxes.

We have hundreds of statutes that authorize various agencies to “regulate” various things. None of them has ever been interpreted to include the power to tax. Ever.

**Squitieri: **Again, a tariff does not have to be a tax.

**McConnell: **It’s always a tax. That’s what it is.

Shipping containers are stacked at the Port of Oakland on April 18, 2025 in Oakland, California. | Justin Sullivan/Getty Images

Professor Squitieri, I think one of the more interesting parts of your argument is about whether a tariff is merely a regulation of commerce or a tax. If I understand your position correctly — and please amend or correct — a tariff is a regulation of commerce if it’s imposed primarily for regulatory purposes, but it is a tax if it’s imposed primarily to raise revenue. Is that right?

Squitieri: At the founding, that was the understanding, correct.

Okay, and that understanding should guide —

**McConnell: **May I jump in on that? It is equally true that taxes of all sorts are used for regulatory purposes. We tax tobacco and alcohol for regulatory purposes as well as revenue-generating purposes.

If Professor Squitieri’s argument is correct, not only can the president impose tariffs under a grant of regulatory power, but he can impose taxes of any sort, because the same argument applies.

Taxes are used for regulatory purposes, sometimes. Tariffs are used for regulatory purposes, sometimes. But Congress never gives the president the power unilaterally to increase taxes or tariffs.

Professor Squitieri, I want to make sure I’m fairly characterizing your position. A tariff is a regulation of commerce if it’s primarily for regulatory purposes. It’s a tax if it’s primarily to raise revenue. Do I have that right?

Squitieri: For originalist understandings, referring to the constitutional question, yes.

Okay, how do we distinguish between the two?

**Squitieri: **Looking at the legal evidence. So here, the legal evidence are the relevant executive orders, none of which stress revenue, all of which stress regulating commerce in various ways and for different reasons.

**McConnell: **The president so frequently brags about the hundreds of billions of dollars that the tariffs are bringing in. That is a point of considerable emphasis in the government’s brief.

**Squitieri: **Well, as I flag in my amicus brief, foreign commerce-regulating tariffs can raise revenue as an incident to regulating commerce. The base number of revenue raised is not particularly meaningful as a legal matter, because regulations of a lot of commerce will, as an incident, raise a lot of revenue. And regulations of a little bit of commerce will, as an incident, raise a little bit of revenue.

**McConnell: **If this is adopted, this is a loophole so big you can drive a huge truck through it. A president will always be able to come up with some kind of regulatory purpose in order to justify a tax or a tariff that is going to bring in revenue.

Is there any tariff that you would say would fall outside the phrase “regulate”? Or do tariffs simply just fall under regulation power?

**Squitieri: **Just to clarify, the relevant phrase is not just “regulate,” it’s “regulate importation.” And then there are other statutory restrictions on the tariff authority; they have to deal with “an unusual and extraordinary threat.” It’s not just that a president can say this regulates or not; the president has to satisfy all of the other statutory requirements.

Assuming he does, is there any tariff that would fall outside of that phrase? Or are all tariffs covered?

**Squitieri: **Assuming that the president satisfies all of the various statutory requirements that I lay out in the amicus brief, then yes, he could use the statutory authority as Congress laid out.

If Congress has a problem with that, Congress can, of course, amend the statute. The idea that we need to run to a court and ask a court of law to amend a statute — it’s just not how these things are supposed to be done.

**McConnell: **Of course, we ran to the courts repeatedly when President Biden tried to use vague statutory authority to do things like the $430 billion student loan forgiveness, the Covid vaccine mandate, the eviction moratorium, the new climate change regulations and so forth.

It is standard practice for courts to decide whether the president’s actions comply with the terms of the statute. So, let’s not just say that Congress can correct it if they get it wrong.

But I’m really glad that Professor Squitieri has brought up the separate and really independent argument under IEEPA — which is that it only applies in the case of unusual and extraordinary threats to U.S. interests — because the trade deficits, which are the subject of the executive order, are anything but unusual and extraordinary.

The executive order itself says that they’ve been “persistent.” It uses the word “persistent” [repeatedly] in the executive order.

We have had trade deficits every single year since 1974, and they’re not getting any worse. If you look at the data as a percentage of GDP, the trade deficit has been relatively stable for the last 12 years.

There is nothing unusual or extraordinary about it, which is a separate and independent reason why these tariffs are illegal. Even if Professor Squitieri and the government are correct that “regulate importation” includes tariffs, IEEPA only allows that in cases of unusual and extraordinary threats.

Professor Squitieri, do you want to talk about that and how you see that as relevant or not to the argument?

**Squitieri: **I do think that those requirements impose statutory constraints that courts can interpret. I do think, however, given that we’re talking about the foreign affairs and national security context, that courts should be highly deferential to the president’s factual determinations made within those statutory constraints.

**This question of whether this is really exercising power over foreign governments — or if it’s a domestic thing — seems to me to carry a lot of weight here, particularly because we have a fairly robust line of cases in which the courts defer to presidents on issues of foreign policy or national security. **

How critical is that element — the fact that the government is arguing, and you’re arguing, that this is a foreign affairs issue?

Squitieri: It’s important in a couple of different ways. To return to nondelegation, for example, that doctrine applies more laxly — and perhaps doesn’t apply at all — when we’re talking about foreign affairs authority. It’s relevant to the major questions analysis, where the logical underpinnings of the major questions doctrine would not seem to apply to exercises of foreign authority as well.

Maybe even just at the statutory interpretation level, it is an international economic relations statute.

**Squitieri: **Correct. I do think in other cases, there might be debates about whether a particular statute is an exercise of foreign affairs authority or emergency authority, but this statute clearly is an exercise of foreign affairs authority. It says it in the title, and also refers to emergencies as well.

**McConnell: **And when Congress added the words “unusual and extraordinary” when it drafted IEEPA, those words did not appear in the Trading with the Enemy Act.

They were added specifically in response to President Nixon’s use of TWEA in a way which Congress disapproved of. Those are new words. They are in there. And even if we give the president a significant dollop of deference — even with deference, there is no way that the trade deficit problem can be seen as unusual and extraordinary.

[Trump’s] description of it in the executive order is that it has been persistent. And he talks about it, uses data going back decades. “Persistent” is practically the antonym of unusual and extraordinary.

Even with massive deference, I don’t see how any court could come to the conclusion that these trade deficits are unusual or extraordinary.

**Squitieri: **I do think that emergency situations can arise from things that take a long time to develop, but at some point, we do reach a tipping point. Imagine if we were in a boat, for example, and we sprung a light leak. Initially, that might not be an emergency, but if we let the leak build up over and over, over time, we might very well soon find ourselves in an emergency.

**McConnell: **Is there any evidence we have come to a tipping point?

**Squitieri: **Yes, that emergency declaration made by the president of the United States.

**McConnell: **Is there any evidence that we have come to a tipping point? I’m not asking what the president said.

**Squitieri: **Yes, a presidential emergency declared by the president of the United States, who was elected by the American people, to make those types of statutory declarations.

I understand that Professor McConnell’s business clients disagree with the president’s factual determination, but those businesses were not elected president of the United States.

Congress is also empowered, of course, to override the president’s decision. Congress was also elected, and Congress has not overridden that tenet.

**McConnell: **And the important thing is that a court is empowered to decide whether the statutory preconditions of IEEPA have been met, and they are going to look to evidence.

Unless you want to take the position that whatever the president says goes, they’re going to have to look at some evidence to see whether this condition is unusual and extraordinary. And I don’t think there is an iota of evidence to support that.

I don’t disagree that there can be tipping points, but there’s no evidence that we’ve reached any kind of a tipping point. We’ve been in the same situation for a very long time, and it seems to be long-term stable — not getting any better, not getting any worse.

House Speaker Mike Johnson (R-La.) speaks alongside other members of House Republican leadership and members of the New York House delegation during a press conference at the U.S. Capitol on the 30th day of a government shutdown, Oct. 30, 2025. | Francis Chung/POLITICO

**Squitieri: **Even just taking that argument on its theoretical terms, though, it assumes that other facts in the world, such as our interactions with other nations, have not changed. A lot of different things can change in the world that would lead a president to determine that there is now an emergency.

Again, Congress could override this if Congress disagrees. The president was elected and is statutorily empowered to make these decisions.

**McConnell: **Now again, let’s look at what Congress has done.

Congress, over the last several decades, has authorized the president to engage in international negotiations with other countries about levels of tariffs. The way it works is the president goes to Congress. Congress authorizes fast-track authority. The president then negotiates, [and] it then comes back to Congress for a vote. It’s never unilateral.

But even that negotiating authority, since 1988, has been limited to decreasing tariffs. The statutes explicitly say that the tariffs can only be decreased relative to the date of the passage of each of these statutes.

It’s Congress’ judgment that our problem — to the extent [that there is] this persistent, long-standing problem — is that the tariffs are too high, not that they’re too low.

**Squitieri: **I think a sensible tariff statutory regime would give the president different powers to do different things. This statute, IEEPA, gives the president certain tariff authority. The question is whether the president has satisfied the statutory requirements of IEEPA to exercise that tariff authority. The president does not have to satisfy other statutory requirements of other statutes that the president is not relying on.

McConnell: I’m just wondering, who do we look to in deciding what kind of unusual and extraordinary problem we have? And if we’re interested at all in what Congress thinks.

Since IEEPA, Congress’ delegations of negotiating authority have all been limited to decreasing tariffs, not increasing them. The president is taking a position here which is contrary to that of the branch of government that is constitutionally vested with this power.

**Squitieri: **I think, to the extent that Congress happened to agree with Professor McConnell’s assessment, Congress could amend IEEPA.

**McConnell: **If that is a sufficient answer, the courts might as well just shut down.

Congress can always go back and change statutes. But part of the job of courts is to determine whether the president and other actors are acting in accordance with the words of the statute as they now exist. That Congress can go back and pass new statutes is just no answer.

**Squitieri: **I agree that the courts can enforce statutory limits. No disagreement from me there, but we are talking about a factual determination made by the president of the United States, and the international and national security context. Courts have to be highly deferential to the president in those contexts. That’s how things work.

McConnell: In order to sustain this, they have to be more than highly deferential. They have to simply abdicate any interpretive role — because no matter how deferential you are to this finding, the trade deficit situation is not unusual. It is not extraordinary. It is the new normal.

**Squitieri: **I respectfully disagree.

**In Trump’s second term, we’ve seen a lot of situations in which the government and the Justice Department have been called out for making false representations about what the government is doing and why it is doing it. **

I understand the notion of giving the president a high degree of deference, but should we not be a little bit more skeptical of the representations coming from this government?

**Squitieri: **No, the president was elected president of the United States. The Supreme Court should give this president the same respect it gives any other president.

McConnell: I agree with that. But the court did not hesitate to strike down five different major actions of the Biden administration.

Trump deserves a great deal of deference as the elected president of the United States, but he does not deserve any more deference than President Biden got.