SCOTUStoday for Wednesday, November 5

Welcome to Wednesday, Nov. 5, 2025, or – as we like to call it here at SCOTUSblog – Tariffs Day.

SCOTUS Quick Hits

• The justices will hear argument today in Learning Resources, Inc. v. Trump, on whether the International Emergency Economic Powers Act authorizes the president to impose tariffs.
• SCOTUSblog is hosting a live blog during today’s oral arguments starting at 9:30 a.m. EST. The live blog will be shared on C-SPAN, Amy Howe appeared on that network earlier this morning, and Zachary Shemtob will be interviewed on C-SPAN after the arguments have ended.
• Also after the tariffs argument, the Advisory Opinions podcast will be available on SCOTUSblog. Host Sarah Isgur will be joined by Amy, David French, Roman Martinez, and David Lat.
• Additional briefs in Trump v. Illinois, on Trump’s authority to federalize and deploy the National Guard in Illinois, are due by Monday, Nov. 10.
• There have been a great deal of questions about whether, given the government shutdown, the public is able to attend oral arguments. On its website, the court states that “[s]eating for the oral argument session will be provided to the public, members of the Supreme Court Bar, and press.”

Morning Reads

• Trump Tariffs Fate Rides on Supreme Court Justices He Picked (Greg Stohr, Bloomberg)(Paywall) — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who were all appointed to the Supreme Court by President Donald Trump, “will play pivotal roles as the court considers the fate of his signature global tariffs Wednesday,” according to Bloomberg. “[T]o varying degrees, the Trump appointees have hinted that they aren’t sure bets to back him as he seeks unprecedented authority to levy tariffs in the name of addressing national emergencies.”
• Trump’s not going to the Supreme Court hearing on tariffs. But his treasury secretary will be there (Fatima Hussein, Associated Press) — While Trump won’t be at today’s oral arguments, one of his top economic advisers will be. U.S. Treasury Secretary Scott Bessent said on Monday that he will “hopefully [be] in the front row and … have a ringside seat” for the discussion, according to the Associated Press. “I am there to emphasize that this is an economic emergency,” Bessent said.
• Texas county book ban could go to SCOTUS (Asher Price, Axios) — Four years ago, officials in Llano County, Texas, “ordered 17 books removed from libraries after conservative activists alleged they were ‘pornographic filth,'” according to Axios. That order led to a dispute between officials and a group of county residents over whether such book removals violate free speech. “A federal judge in Austin in 2023 ruled for the residents, ordering the county to return to the public library system books they removed and allow them to be checked out again.” But then in May, the U.S. Court of Appeals for the 5th Circuit said the “removal of certain books was government speech — and not subject to free speech challenges.” The residents have asked the Supreme Court to review that decision as controversies over book bans persist nationwide.
• Slur or free speech? Willamette hosts band at the center of landmark Supreme Court case (Paul McKean, Willamette University) — The rock band The Slants recently visited Willamette University to give a “lecture-performance … about Asian American identity, art, and free speech,” as well as their experience in front of the Supreme Court, according to the school’s coverage of the event. In 2017, the band was at the center of a case on free speech and trademark rights, in which the court held that the U.S. Patent and Trademark Office’s refusal to register the band’s name due to concerns about it being derogatory violated the First Amendment. “People said that we were this band that turned stereotypes upside down,” band member Simon Tam said. “We had to fight back.”
• The Tariff King and the Supreme Court (The Wall Street Journal Editorial Board)(Paywall) — In a column on the tariffs case, The Wall Street Journal Editorial Board called on the court to reject the Trump administration’s claims about the president’s foreign-policy authority and embrace a much more limited view of “presidential tariff power.” “Few conservatives are more deferential to presidential overseas authority than we are,” the board wrote. “But the power of the purse still belongs to Congress and can’t simply be wished away with the words ‘foreign policy.’ Tariffs are taxes on Americans.”

A Closer Look: The Major Questions Doctrine

The major questions doctrine, a judicial principle that courts have used to scrutinize expansive claims of statutory authority by executive agencies, will likely be an important part of today’s oral arguments on Trump’s sweeping tariffs implemented under the International Emergency Economic Powers Act. Ultimately, in accordance with this doctrine, the court may ask: Did Congress really give the president power to make decisions of “vast economic and political significance” without explicitly saying so? As Chief Justice John Roberts put it in West Virginia v. EPA, courts should “hesitate” to greenlight “extravagant” claims of power based on (seemingly) vague statutory language.

Some scholars maintain that the major questions doctrine has been around for some time. But this doctrine arguably entered the public discourse in the 2000 case of FDA v. Brown & Williamson Tobacco Corp., where the court rejected the Food and Drug Administration’s attempt to regulate tobacco products – ruling that Congress had not granted the FDA that authority under the Food, Drug and Cosmetic Act of 1938. As Justice Antonin Scalia wrote the following year when referencing the case, Congress does not “hide elephants in mouseholes,” meaning they wouldn’t delegate such broad authority through ambiguous phrases. In this way, the doctrine may act like a backstop to the Constitution’s separation of powers: Congress makes the big calls on taxes, regulations, and trade, and can’t punt those to the executive branch (or at least the executive agencies) without explicit instructions.

In early 2022, the court in a 6-3 ruling in National Federation of Independent Businesses v. OSHA stopped a vaccine-or-test mandate for large employers, reasoning that shoehorning pandemic rules into a 1970 workplace-safety law was too big a stretch. Later that year, West Virginia v. EPA weakened the Environmental Protection Agency’s regulation of coal-plant emissions, with Roberts warning that shifting the nation’s energy grid demanded more than the agency relying on an “ancillary provision” in the Clean Air Act. And in 2023’s Biden v. Nebraska, the court “ruled that the Biden administration overstepped its authority” in attempting to cancel roughly $400 billion in student loans under a higher education law, calling the scope of this “staggering” and unprecedented.

Critics of the major questions doctrine have argued that it allows judges to substitute their policy preferences for Congress’ intent, especially when what constitutes “major” feels like a moving target. As Justice Elena Kagan, dissenting in West Virginia, argued, the doctrine can be used to ignore how modern statutes often use broad terms precisely because Congress can’t manage everything. But supporters like Justice Neil Gorsuch see it as essential to “protect[ing] foundational constitutional guarantees.” And Justice Amy Coney Barrett has endorsed the major questions doctrine as an important interpretive tool.

In the tariffs fight, the Trump administration is expected to claim, among other things, that its actions were clearly authorized under IEEPA and that the doctrine doesn’t apply in the foreign policy context or to the president (as opposed to the executive agencies). But, in the view of Adam White, who recently wrote for SCOTUSblog, “In the end … arguments over the technical application of a major questions doctrine may simply be a red herring. Whether or not the court explicitly invokes the major questions doctrine by name, or if it simply undertakes its own best reading of IEEPA’s use of the term ‘regulate’ with a measure of skepticism toward Trump’s unprecedented claims of power, the sheer magnitude of power claimed by the president, and its practical effects, should give it pause.”

SCOTUS Quote

JUSTICE ALITO: Mr. Ginzburg says that all the courts — almost all the courts of appeals have decided this question against you, and the leading commentators take the opposite position. How do you account for that?

MS. BLATT: … And I think just last term you ruled against a case I argued when all the courts had gone our way.

— Coney Island Auto Parts Unlimited v. Burton

On Site

From Amy Howe

The Other Arguments in Trump’s Tariffs Case

When the Supreme Court hears oral arguments today in the challenges to Trump’s tariffs, they will hear from three different lawyers representing small businesses, a group of 12 states, and – defending the tariffs – the Trump administration. But when they vote on the case, the justices will also have considered 44 “friend of the court” briefs filed on behalf of members of Congress, trade experts, legal scholars, think tanks founded by former Vice President Mike Pence and presidential adviser Stephen Miller, the watch industry, and a vineyard owner. The briefs cover a wide range of topics, from the impact of the tariffs to the history of trade law. Learn more about them by reading Amy’s analysis.

Contributor Corner

The Tariffs Case and Whether Amicus Briefs Matter

Erwin Chemerinsky also analyzed the amicus briefs filed in the tariffs case in his latest Courtly Observations column and highlighted what stood out to him in the filings. He noted that there were notably fewer briefs overall than in other recent high-profile cases, and that “it also was striking how many of the amicus briefs against the Trump administration were filed by conservative groups.”

Argument Analysis

Ronald Mann on Hencely v. Fluor Corporation

Monday’s argument in Hencely v Fluor Corporation revealed a bench broadly skeptical of the idea that military contractors have absolute immunity for negligent mistakes they make when those mistakes occur in an active war zone, according to Ronald Mann, who is covering the case for SCOTUSblog. He observed that Justice Brett Kavanaugh “seems pretty settled in his support of the contractor, but it is possible that he might be entirely alone on that side of the case.”