Trump’s tariffs: from dollars to donuts

Security around the U.S. Supreme Court building is amped up a bit this morning, almost as if somebody really important was planning to attend. 

President Donald Trump toyed with the idea of showing up in the courtroom for the arguments over the legality of his tariffs in Learning Resources, Inc. v. Trump. But he retreated from that on Sunday, both in a conversation on Air Force One and in a post on his Truth Social page.

“I will not be going to the Court on Wednesday in that I do not want to distract from the importance of this Decision,” Trump wrote in the post. “It will be, in my opinion, one of the most important and consequential Decisions ever made by the United States Supreme Court.”

But some key members of his administration are here today. As reporters are filing into the courtroom, Secretary of Commerce Howard Lutnick, with an entourage of security and aides, passes through our line to enter the courtroom through another door. 

He is soon joined in the courtroom by Secretary of the Treasury Scott Bessent, who had told Fox News Channel’s Jesse Watters on Monday, “I’m actually going to go and sit hopefully in the front row and listen, have a ringside seat.” 

Bessent and Lutnick are indeed in the front row, but of the public section, which is well short of ringside since it is behind the multiple rows of the bar section. U.S. Trade Representative Jamieson Greer, also a member of the president’s cabinet, joins them.

A row or two behind them is Elizabeth Prelogar, who was U.S. solicitor general under President Joe Biden. After a teaching stint at Harvard, she is now at Cooley, the law firm where she worked before joining the Biden administration. 

The center bench in the court’s public section, which is reserved for members of Congress or other dignitaries, is filling fast with several men with little lapel pins indicating they are members of the House. They include Rep. Jason Smith, Republican of Missouri, the chairman of the House Ways and Means Committee; and Rep. Richard Neal, Democrat of Massachusetts, the ranking member. 

(I would say that I also “spot” Reps. Suzanne Bonamici of Oregon and Greg Stanton of Arizona, but really I was able to grab one or two of the lapel pin-wearing members after the argument to ask who they were. There are a few other House members I can’t quite put my finger on.)

Sen. Amy Klobuchar, Democrat of Minnesota, arrives to join the House members on the center bench, which is now full. So when Sen. Ed Markey, Democrat of Massachusetts, arrives just minutes before the argument begins, his escort from the marshal’s office asks some spectators in the bench nearest to our press box to scrunch over a bit to make room for him. Luckily, Markey is still as slim and fit as when I first had occasion to cover him as a House member in the 1990s.

In contrast to his fellow members of Congress, though, who will stay for the duration, Markey gets up and leaves after 20 minutes.

There is one more familiar face in the public section, though he is way in the back and I might not have noticed him if some of my press colleagues had not been stirring a bit. John Mulaney, the comedian, is here today. My colleagues also inform me that Neal Katyal, who will be arguing this morning for the private small business owners who are challenging the tariffs, was a guest on Mulaney’s Netflix show, “Everybody’s Live with John Mulaney,” in April. And it turns out Mulaney had appeared on Katyal’s podcast, Courtside, in 2023.

Speaking of Katyal, he arrives carrying a banker’s box of documents, in a cardboard box literally of the “Banker’s Box” brand, to the counsel table. With him is Pratik Shah, who is representing a different set of small business owners challenging the tariffs. As many now know, when the court turned down their specific proposal for divided time, Katyal won a coin flip with Shah to speak today for the two sets of small business plaintiffs.

They greet U.S. Solicitor General D. John Sauer, who will argue for the Trump administration, and Oregon Solicitor General Benjamin Gutman, who will argue for the 12 states that are also challenging the tariffs.

Some of the plaintiffs are here in the public gallery, including Rick Woldenberg, the CEO of Learning Resources and its sister company, hand2mind, both based in suburban Chicago; as well as Victor O. Schwartz of V.O.S. Selections, the wine importer that is the lead plaintiff in Trump v. V.O.S. Selections, Inc.

All this talk of who was in the packed courtroom barely leaves room to discuss what went on in the two-hour, 40-minute argument. 

Sauer was sometimes animated in his defense of the president’s policies. At the outset, he informally quoted Trump’s rhetoric that the trade imbalance and fentanyl emergencies behind the tariffs “are country-killing and not sustainable, that they threaten the bedrock of our national and economic security, and that fixing them will make America strong, financially viable, and a respected country once again.”

Katyal uses many vivid historical references, including that “[t]ariffs are constitutionally special because our Founders feared revenue-raising, unlike embargoes. You know, there was no Boston embargo party, but there was certainly a Boston Tea Party.”

Referring to both some possible alternative grounds for imposing tariffs and the International Emergency Economic Powers Act, the 1977 federal law that Trump is trying to use, Katyal says, “Why would any president look to all of the different tariff statutes in Title 19 if you can just IEEPA them all, French Revolution them all.”

There are also mentions of King George III and Presidents George Washington, James Polk, William McKinley, Abraham Lincoln, and Richard Nixon, as well as more recent White House occupants. Also – pirates, in a question from Justice Neil Gorsuch.

Gorsuch tells Gutman that “the really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress, the power to reach into the pockets of the American people is just different and it’s been different since the founding and the navigation acts that were part of the spark of the American revolution, where Parliament asserted the power to tax to regulate commerce.”

Gorsuch says “We had a lot of pirates in America at the time. And Americans thought even Parliament couldn’t do that, that that had to be done locally through our elected representatives.”

Gutman has a moment when Justice Brett Kavanaugh, who with Justices Clarence Thomas and Samuel Alito seemed most likely to rule for the president, refers to the government’s “donut hole” argument. That centers on the view that under the challengers’ theory, the president could shut down trade or impose quotas on a country, but not “a 1% tariff.”

Gutman replies that because the argument centers on a different kind of power, “it’s not a donut hole; it’s a different kind of pastry.”

He doesn’t specify which kind, leaving us hungry for an answer.

The court’s answer in this big case could come any time before the end of the term, but some expect it to be sooner rather than later.