Republicans quietly hope Supreme Court bails them out on Trump’s trade war

Republican lawmakers are quietly hoping the Supreme Court will hit the brakes on President Trump’s trade war, which has become a growing political liability for the GOP even with the president’s pause of much of his tariff regime.

The high court has ruled in favor of Trump several times during his first few months in office, but it handed his administration a setback last week by ruling that it must facilitate the return of a Maryland man who was mistakenly deported to El Salvador.

Trump’s sweeping reciprocal tariffs against more than 180 counties face new legal challenges after several businesses sued the administration in the U.S. Court of International Trade and a federal district court in Florida.

Most of those tariffs are on hold for a 90-day period to allow countries to negotiate with the Trump administration. China is the big exception. Many of its products now face tariffs at 145 percent.

Some Republican lawmakers, who privately oppose Trump’s tariffs but are afraid of criticizing the president publicly, hope that that the Supreme Court will ultimately curb Trump’s tariff authority.

“Members would love to have the courts bail them out and basically step in and assert the authority under the Constitution that taxes are supposed to originate in the House of Representatives,” said Brian Darling, a GOP strategist and former Senate GOP aide.

“Senators and House members would like the courts to give them some cover because I’m sure many of them are nervous about getting reelected if these tariffs last for a long time. They’re looking at the poll numbers and see that tariffs are not popular,” he said.

“They’re not going to be outwardly opposing the president because that comes with a huge downside,” he added.

Jeffrey M. Schwab, the senior counsel for the Liberty Justice Center, which has filed a lawsuit challenging Trump’s sweeping “Liberation Day” tariffs on behalf of U.S. businesses that import goods from the countries targeted by the levies, said the case is likely to reach the Supreme Court unless Trump reverses course.

“IEEPA just doesn’t authorize this action to impose these tariffs, and even if IEEPA does authorize some tariffs, which is a question that I think is questionable, they certainly authorize worldwide, across-the-board tariffs,” Schwab told The Hill, citing the International Emergency Economic Powers Act (IEEPA).

Schwab said the Trump administration pointing to trade deficits to justify sweeping tariffs has failed to articulate an unusual and extraordinary emergency.

“The trade deficit is not an emergency. It’s not unusual nor is it extraordinary. Even if you accept that IEEPA could authorize the president’s tariffs as a general rule, it doesn’t authorize them under the justification they gave,” he said.

Schwab, the lead counsel in the case, said he will push to get the case to the Supreme Court quickly, given how soon Trump’s tariffs could have repercussions for businesses.

“It’s certainly the kind of case that the Supreme Court would be interested in because the consequences are so far-reaching and you’d want an authoritative decision on it. You definitely don’t want a circuit split on it,” he said.

“We’re going to try to move it quickly,” he added, explaining his team would seek a preliminary injunction against the reciprocal tariffs this week.

The New Civil Liberties Alliance, a conservative legal group, has filed a separate lawsuit in Florida seeking to block Trump’s tariffs against China.

The group’s senior litigation counsel, Andrew Morris, has said Trump’s tariffs against China has “usurped Congress’s right to control tariffs, and upset the Constitution’s separation of powers.”

Sen. Rand Paul (R-Ky.) agrees that tariffs are taxes on American consumers and that the Constitution explicitly gives Congress, not the executive branch, the power to levy taxes.

“The Constitution says taxes originate to Congress,” he said. “That to me isn’t a pointless argument. It’s an incredibly important argument, whether taxes can be levied under one person."

He said that IEEPA “is a piece of legislation that had do with emergencies but doesn’t mention tariffs at all in it.”

“There are many people who believe that the power under IEEPA doesn’t even exist. So Congress needs to grow a spine, and Congress needs to stand up for its prerogatives regardless of party, regardless even of the economic issue,” he said.

“Should we be a country ruled by emergency edict or are we going to be a country ruled by the democratic actions and voting of Congress. I think it’s incredibly important,” he said.

Paul is co-sponsoring a resolution with Sen. Ron Wyden (D-Ore.) to undo Trump’s reciprocal tariffs. They plan to bring the privileged resolution to the Senate floor for a vote after the two-week Easter recess.

Some of Trump’s staunchest allies, such as Sen. Ted Cruz (R-Texas), have characterized tariffs as “taxes.”

“Tariffs are a tax, and I’m not a fan of raising taxes on millions of American consumers,” Cruz told The Hill this month.

Sen. Ron Johnson (R-Wis.) in a Sunday interview on NewsNation questioned the Trump administration's "endgame" in the trade war. 

He warned that tariffs are “a double-edged sword” and “a pretty blunt instrument.”

Johnson, who called himself an “unabashed free trader,” previously had kept his concerns about Trump's tariffs relatively muted.

Four Republicans, Paul and Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Mitch McConnell (Ky.), voted for a resolution this month to undo Trump’s 25 percent tariff against Canada.

It passed the Senate by a 51-48 vote but has little chance of coming up for a vote in the House.

“If the courts run interference on any of Trump’s tariffs, that plays well for Republicans on Capitol Hill that don’t agree with them,” said a second Republican strategist, who requested anonymity to discuss the internal divide among Republicans over Trump’s trade war.

The strategist said many Republican lawmakers think Trump has acted too aggressively in slapping Mexico and Canada, two of the nation’s biggest trading partners, with 25 percent tariffs.

The source said GOP lawmakers are worried about their own reelections if the economy falls into a recession but at the same time don’t want to criticize Trump’s policies publicly.

“They’re in a precarious situation, politically,” the strategist said.

The strategist predicted the Supreme Court “probably will get involved in some way.”

“Some of them could get struck down when they get to the Supreme Court,” the source added.

Seven Senate Republicans have co-sponsored the Trade Review Act of 2025, which is being led by Sens. Chuck Grassley (R-Iowa) and Maria Cantwell (D-Wash.).

The other GOP co-sponsors are Collins, Murkowski, McConnell and Sens. Jerry Moran (Kan.), Thom Tillis (N.C.) and Todd Young (Ind.).

The legislation would require that new tariffs or tariff increases expire after 60 days unless Congress passes a joint resolution of approval. It would also allow Congress to sunset tariffs more quickly by passing a resolution of disapproval.  

Grassley declared at a Senate Finance Committee hearing with U.S. Trade Representative Jamieson Greer that the Constitution gives Congress the authority to regulate interstate and foreign commerce.

A Senate Republican aide who requested anonymity to speak about internal sentiment said Trump's sweeping tariffs aren't popular among GOP senators.

“The concern is pretty broad,” the source said. 

While many Republican senators favor threatening tariffs to get better deals for American exporters, they fear that Trump's tariffs could become permanent. 

The aide said Senate Republicans don't want district court-level judges making decisions that affect the whole country but would view judicial intervention more favorably if the Supreme Court weighs in. 

“There are a lot of people who don't like the tariffs,” the source added. “It's an issue that splits our party.”