Trump Solicitor General Struggles With Trump Justices on Tariffs

John Sauer was in an unfamiliar position as the conservative Supreme Court majority that gave him big victories in rulings on presidential immunity and courts’ power to rein in executive actions appeared more skeptical of his defense of Donald Trump’s tariff power.

Sauer, a former personal attorney for Trump who is now US solicitor general, talked fast and was often second-guessed during arguments on Wednesday as he claimed a 1977 emergency law gave the president broad powers to impose tariffs on foreign imports.

Sauer drew questions from conservative Justices Neil Gorsuch and Amy Coney Barrett over whether the law’s language conferred tariff authority to the executive, which his opposing counsel, Neal Katyal, later capitalized on.

Chief Justice John Roberts also pushed back on one of his opening arguments claiming a Reagan-era case held that the law at issue granted the president’s “actions the strongest presumption of validity and the widest latitude of judicial interpretation.”

That case, Dames & Moore v. Reagan, “certainly did not concern tariffs,” said Roberts. “So I don’t quite understand how you can get as much out of Dames & Moore as you’re trying to get.”

The comment was “not a good sign,” said John Vecchione, senior counsel at the New Civil Liberties Alliance, a conservative-leaning group supporting the challengers in the tariff case.

“The reason it’s so devastating to the government’s position is because they’re relying on it as an anchor,” he said.

‘Talking So Quickly’

The arguments represented the fifth time Sauer, who clerked for the late Justice Antonin Scalia and once served as a Missouri solicitor general, appeared before the justices.

Sauer was characteristically fast talking while fielding questions and trying to convince the justices that Trump’s tariffs under the International Emergency Economic Powers Act were “regulatory” and distinct from revenue-based taxes.

At one point, Justice Ketanji Brown Jackson asked him to “back up just a second” because he was “talking so quickly.”

“He was talking a million miles an hour, which is a thing advocates have to do when you have a really hot bench,” said Ashley Akers, a senior counsel handling trade policy at Holland & Knight.

But, Akers said Sauer was unable to articulate Congress’ specific intent in drafting IEPPA, which “could have really helped him.”

Chris Duncan, a trade lawyer at Squire Patton Boggs, also said the court at times appeared “perplexed” by the argument that the tariffs in question are regulatory, “even the justices that might be a little deferential to him.”

‘One-Way Ratchet’

Several of Sauer’s exchanges with the justices were seized on by his chief adversary, Katyal, who joined Milbank shortly before the firm struck a deal with Trump to spend $100 million on initiatives backed by the firm and president.

Katyal, a former acting US solicitor general and frequent advocate at the court, hammered his argument early and often that Trump’s tariffs bypassed Congress to impose “one of the largest tax increases” in US history.

“This is obviously revenue-raising,” Katyal said. “Their own brief to the court says it’s going to raise $4 trillion.”

Katyal said federal law contains more than 1,400 instances of the word “regulate,” but that none were used to mean tariffs. And he emphasized concerns raised by two conservative justices about how difficult it would be for Congress to take back any tariff power the high court conferred on the president in the case.

“As Justices Barrett and Gorsuch said, this is a one-way ratchet,” Katyal said. “We will never get this power back if the government wins this case.”

Katyal joked with the justices at points—generating laughter from the audience in one exchange with Justice Samuel Alito, who asked if he expected to be the man arguing for the revival of the long-dormant non-delegation doctrine.

“Heck, yes, Justice Alito,” Katyal replied.

Katyal’s performance won high marks from observers, including Brent Skorup, a legal fellow at the Cato Institute, who said he came away feeling “encouraged.”

The libertarian think tank has opposed the tariffs and submitted amicus briefs urging the Supreme Court to rule against them.

Akers, who previously worked on litigation at the Court of International Trade while at the Justice Department, said Katyal’s skill could be seen in how the justices appeared to reference his arguments in their questions.

“I think on a common sense, thematic level he did really well, and you could see that echoed back in some of the justices’ questions of, if IEEPA has this authority, why didn’t other presidents use it?” Akers said.

Where the challengers missed a step, Akers said, was in not having a tight answer on where to draw the line on the president’s power to regulate imports under IEEPA.

The court was expected to rule quickly on the case, given the expedited timeframe under which the justices agreed to hear it. Attorneys from NCLA said they anticipated a ruling in January or February.

The case is Trump v. V.O.S. Selections, Inc., U.S., No. 25-250, argued 11/5/25.