The Gavel: Tariff crunch time at Supreme Court

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, September 10 By Zach Schonfeld and Ella Lee Wednesday, September 10 © Alex Brandon, Associated Press Tariff crunch time at Supreme Court President Trump's most significant economic initiative is now in the hands of the Supreme Court.  The justices announced Tuesday they will fast track whether Trump can use emergency powers to justify his sweeping tariffs worldwide, expediting oral arguments to the first week of November.   The stakes are tremendous.   A loss at the high court would doom the president's efforts to refashion global trade. But a victory could cement new presidential powers and clear Trump's path to greater executive authority.   On the line is Trump's global "Liberation Day" tariffs and a series of levies specifically against Canada, China and Mexico dating back to February.  In many ways, the court's announcement came with little surprise. Both the Trump administration as well as the small businesses and Democratic states suing urged the justices to get involved.  Even Justice Amy Coney Barrett appeared to give it away on a book tour interview with Fox News' Brett Baier a day prior, seeming to momentarily question if the announcement was already out.  "That one has not been scheduled yet — to my knowledge," she said.  "You might have more current information than I do."  Less expected was the high court's decision to take up a near-identical challenge to Trump's tariffs brought by a separate group of educational businesses.  The addition may not seem like much at first glance, but it raises a potentially major legal issue that has simmered below the surface of the tariff battle.  The first case was filed in the U.S. Court of International Trade (CIT). It's a specialty court that hears cases from all over the nation, but only if they concern customs and international trade laws.  The trade court had ruled the International Emergency Economic Powers Act (IEEPA) does not provide Trump with "unbounded" authority to impose his sweeping tariffs.  Here's the problem: if the Supreme Court goes further and rules IEEPA doesn't authorize tariffs, full stop, the trade court wouldn't have the power to hear the case.   That would create a procedural hot mess, to say the least. No need to fear, as that's where the additional case comes in.  In that scenario, federal district courts take charge.  Guess where the second case comes from? A federal district court.   In short, the addition allows the justices to keep their options open and avoid backing themselves into a corner.  Now, it's full steam ahead, with opening briefs due in nine days. Everyone was on board with the speedy schedule.  "We are confident that the Supreme Court, like the CIT and the Federal Circuit, will recognize that the President does not have unilateral tariff power under IEEPA," Jeffrey Schwab, director of litigation at the Liberty Justice Center, which represents one group of businesses. "Congress, not the President alone, has the constitutional power to impose tariffs."  The states had similarly told the justices in court filings that "the issue is undoubtedly of great national importance."  "Thus, although the Federal Circuit got it right — and although the petition is littered with inaccuracies, hyperbole, and citations to material outside the summary judgment record — the state respondents agree that this Court should grant expedited review," they wrote. Cases granted at this time normally head to oral arguments early next year. But the parties convinced the justices to move faster and set the argument for the first week of November.  "The en banc Federal Circuit's erroneous decision has disrupted highly impactful, sensitive, ongoing diplomatic trade negotiations, and cast a pall of legal uncertainty over the President's efforts to protect our country by preventing an unprecedented economic and foreign policy crisis," Solicitor General D. John Sauer wrote in court filings on behalf of the administration.  It's a late addition. The court has already announced its November argument calendar.  An open spot remains on Wednesday, Nov. 5, when the court will only hear one case.  The court could also meet the timeline by moving another case or scheduling an additional argument day on Thursday, Nov. 6 or Friday, Nov. 7.  Regardless, an argument in the first week of November — less than 60 days away — is speedy by Supreme Court standards.  The court can move fast when it wants to (Anyone remember Bush v. Gore? It was decided in less than a week).  Just this term, the court expedited arguments on the federal TikTok divest-or-ban law and took the bench 23 days after agreeing to hear it.  Last term, the justices heard Trump's appeal of a ruling kicking him off Colorado's presidential ballot under the 14th Amendment's insurrection ban 34 days after taking it up. And although it wasn't as fast as Trump's critics would've liked, the justices held arguments on Trump's presidential immunity claims 57 days after taking up the case.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS Spitters in the spotlight; Trump resistance; gun groups on transgender ban Feds get tough on spitters as part of DC crime crackdown  Football fans last week were astonished by Eagles' defensive star Jalen Carter's ejection for spitting on Cowboys quarterback Dak Prescott just as the NFL season kicked off.   And fans of pop star Harry Styles might recall that three years ago this week, the internet erupted over a viral clip that seemed to show the budding actor spit on his co-star Chris Pine's lap at the Venice Film Festival.  But we've got our eyes on another group of spitters.   Federal prosecutors are coming down heavy on alleged spitters as Trump's crime crackdown in Washington, D.C., approaches its second month.  At least four people who allegedly spat on National Guard troops or federal law enforcement face federal assault charges, including two instances where a felony charge was brought.   Maryland lawyer Scott J. Pichon was arrested on Aug. 22 after he allegedly spit on two members of the South Carolina Army National Guard assigned to a post at Union Station.   An Amtrak Police sergeant observed Pichon ride a scooter up to the National Guard troops and "make a noise like he was coughing up mucus," according to a statement of facts filed in federal court. Then, he allegedly spit a mixture of saliva and mucus onto one guardsman's face and the other's neck — without stopping his scooter.   Pichon was arrested by the Amtrack officer and hit with a felony assault charge.  Rep. Nancy Mace (R-S.C.) called the incident "disgusting and unacceptable."   "Spitting on those who protect our freedoms is cowardly and criminal," Mace wrote on X. "We expect full accountability and justice for this disgraceful act."  But Monday night, U.S. Attorney for the District of Columbia Jeanine Pirro's office moved to dismiss the case, citing no reason other than having decided that doing so is "in the interests of justice."  Kristal Esquival was arrested and charged with felony assault after spitting on a Smithsonian National Zoological Park Police officer on Aug. 20, according to a statement of facts. The incident occurred after she allegedly entered a door marked "Staff Only" in the Bird House and was notified by the officer that he planned to arrest her for unlawful entry.  In Aug. 26 court filings, Esquival's court appointed legal representation indicated to a judge that she could not effectuate her client's release from jail, writing in an emergency motion for release from custody, "HELP!!!!" There have been no further updates on the court's docket.   Another man, Jose Lagunas, was arrested after a Homeland Security Investigations (HSI) special agent witnessed him spit saliva onto the back of the neck of another HSI special agent on Aug. 19, according to a statement of facts.  The witnessing agent said Lagunas fled the scene after allegedly spitting on the other agent but was spotted days later, on Aug. 24, as agents patrolled a different neighborhood. He attempted to flee again but was intercepted and charged with assaulting, resisting or impeding certain officers or employees, the court document said.   And a third man, Omari Juan Beidleman, was charged with assault after twice spitting in the face of a National Guard member at the Capitol South Metro station.   Several guardsmen broke up a fight between Beidleman and another individual, where they learned he had been stealing the hats off train passengers' heads, according to a statement of offense. Beidleman allegedly threatened the guardsmen, including to kill them, and after spitting on one of them, grabbed for his sidearm.  The guardsmen cuffed Beidleman and took him to the ground, and as the National Guard member Beidleman spat on had his foot on Beidleman's chest, Beidleman spat on him once more – this time on his boot, the court document says.   The charges come as Pirro has instructed her office to do away with typical prosecutorial discretion and seek the highest crime it can, to assist with the president's local crime operation.  But like we reported last week in The Gavel, that has sometimes come back to bite her, as grand jurors have declined to indict at least seven times amid the push for harsher charges.   It's not the first time this year a spitter has made news in the nation's capital, either.   Emily Sommer, 32, was hit with a federal charge after she spat on DOJ official Ed Martin in May, just before he left his post as interim U.S. Attorney for D.C. She later faced more charges after spitting on the deputy U.S. Marshal who arrested her, in addition to kicking him and another deputy U.S. Marshal.  Sommer pleaded guilty to three counts of assaulting a government official last month and is set to be sentenced in October.  Democracy Forward aims to fill gaps in Trump resistance  At the start of President Trump's first administration, Skye Perryman joined a small legal organization, without even a website, bent on holding power to account.  Now, she runs the group — Democracy Forward — which is 53 lawyers strong and among the most formidable legal foes to Trump's second term agenda.   Since Trump returned to the White House, Democracy Forward has filed nearly 100 legal actions against his administration, by its count, notching victories in more than a dozen cases spanning data protections from the Department of Government Efficiency (DOGE) to the release of billions of dollars in frozen funds.   In an interview with The Gavel, Perryman said fighting Trump's agenda has changed since 2017, forcing a recalibration of the legal defense against it. But as Democracy Forward works to fill gaps in the legal resistance, she thinks it's a fight they'll win.   "I had the big task of taking what was a small startup organization with a promising proof of concept that very few people knew about and growing that into an institution that could really withstand and be a leader in the threats to our democracy," Perryman said.   "We've been building this organization to be able to address those challenges," she added.  Perryman's career started in Big Law, working for the firms Covington & Burling and WilmerHale for a decade before joining Democracy Forward's founding litigation team in 2017.   She left after a year to serve as general counsel for the American College of Obstetricians and Gynecologists but returned in 2021, after the Capitol attack made clear that the danger to democracy would not fade as Trump left Washington, she said.  The left-leaning legal watchdog was established to make available to the American people the type of nimble, on-hand representation that large corporations had come to expect from the nation's top law firms, Perryman said, and all its clients are represented pro bono.  It's now the most prolific private organization to take on the Trump administration.  Democracy Forward represents plaintiffs in challenges to Trump's federal funding freeze, immigration crackdown and DOGE's access to federal agencies. It's also involved in litigation against Trump's firings of some independent agency members, the reductions in force across the federal government and efforts to dismantle several agencies, in addition to the administration's clampdown on diversity, equity and inclusion and other matters.   The group's focus has long been at the district court level, investigating and building out cases, because traditionally, that's where there has been a gap in the "pro-democracy legal landscape," Perryman said.   Once cases reached the appellate level, from appeals courts to the Supreme Court, they'd often attract pro bono representation from bigger law firms seeking to help shape the law or boost the appellate experience on their teams.   That's changed since Trump took back the White House.  "There are simply not that many appellate practitioners who are at law firms that are willing to cross the administration in this time," Perryman said.   Democracy Forward launched its own appellate practice last month of about a dozen lawyers in an attempt to start rebuilding that infrastructure.  Trump's second presidency has shifted the playing field in other ways, from his attacks on lawyers and judges to a Justice Department less independent from the White House and more willing to dodge court orders.   This is just a taste of The Gavel's interview with Perryman. Click here to read the full story. Gun rights groups unite against transgender gun restrictions  Gun rights groups are not on board as the Justice Department reportedly considers restricting the ability of transgender Americans to buy or own guns.  As reports surfaced, groups like the National Rifle Association (NRA) made clear they won't support it.  "The NRA does not, and will not, support any policy proposals that implement sweeping gun bans that arbitrarily strip law-abiding citizens of their Second Amendment rights without due process," the NRA said in a statement.  Dudley Brown, the president of the National Association for Gun Rights, urged the administration to "stop chasing headlines on the back of the Second Amendment."  "As history proves, any new rules the government invents today will be abused against ill-favored communities, including conservatives and law-abiding gun owners, tomorrow," Brown wrote on X.  The reported DOJ discussions surfaced last week in the wake of the shooting late last month at Annunciation Catholic School in Minneapolis, which killed two children and injured more than a dozen others. Officials have identified the shooter as transgender.  "The DOJ is actively evaluating options to prevent the pattern of violence we have seen from individuals with specific mental health challenges and substance abuse disorders. No specific criminal justice proposals have been advanced at this time," a DOJ spokesperson said in a statement.  We were curious if Trump would support the proposal. Many thanks to our colleague Alex Gangitano, who covers the White House for The Hill and raised the question to press secretary Karoline Leavitt at yesterday's briefing.  "I saw reporting on this. I understand there were very preliminary, low-level discussions about this at the Department of Justice, and then sometimes those discussions are reported as fact," Leavitt said.  "I'm not tracking any potential actions on this front, and I'll let the president weigh in on that. It's a policy decision and it's far too early, or would be premature, inappropriate for me to weigh in on it at this point in time," she continued.  If the administration moves forward, it remains to be seen how they would legally justify it. Gun Owners of America (GOA) suggested the administration could try to invoke an existing federal law banning gun possession for people deemed "mental defective."  "GOA opposes any & all gun bans. Full stop," the group wrote on social media.  SIDEBAR 5 top docket updates FTC commissioner firing greenlit: U.S. Chief Justice John Roberts temporarily allowed Trump's firing of a commissioner on the Federal Trade Commission (FTC) to move forward as the Supreme Court considers the president's emergency appeal.  Foreign aid fight returns to SCOTUS: The Trump administration asked the Supreme Court to let it freeze billions of dollars in foreign aid, potentially initiating a key battle at the high court over the president's bid to expand his power over federal spending.   Carroll notches another win: A federal appeals court panel upheld advice writer E. Jean Carroll's $83.3 million defamation award she secured from President Trump last year.  Trump assassination attempt trial: The trial over President Trump's attempted assassination as he golfed in south Florida last year started Monday with jury selection. The man accused of plotting the political hit is expected to defend his own case.    Charge unveiled in Charlotte train stabbing: Federal prosecutors on Tuesday charged the man accused of stabbing Iryna Zarutska on Charlotte's light rail system with committing an act causing death on a mass transportation system.  In other news Canceled: Justice Amy Coney Barrett called off a "long-arranged audio interview" with The New York Times's "The Daily" podcast, the outlet reported.   It's official: It seems that Emil Bove, the former Trump attorney and DOJ official, has started serving as a judge on the U.S. Court of Appeals for the 3rd Circuit.  He's newly listed as a judge on the court's website here, which leads to his Federal Judicial Center bio here. H/t appellate lawyer Howard Bashman for pointing it out. Term of art: The street artist and activist Banksy unveiled a new mural on the walls of the Royal Courts of Justice in London, depicting a judge using a gavel to beat a protestor. According to the BBC, the artwork was covered by large sheets of plastic and metal barriers, and court officials said the work would be removed.  PETITION PILE Petitions to take up cases that the justices are keeping a close eye on. With the Supreme Court's new term kicking off in just a few weeks, it's time to bring back petition pile, where we preview notable requests for the justices to take up new cases.  We normally focus on petitions being considered for the upcoming week. For this first conference of the term on Sept. 29, however, we're getting a head start.  That's because the justices will consider a massive number of petitions that piled up over their summer recess. Court watchers even call it the "long conference."  To give you a sense of the numbers, a normal conference tends to include roughly 100-200 petitions. This year's long conference already has 842 petitions, and the number is expected to continue to grow.  For each of the next three weeks, we'll highlight the petitions we have our eye on. Today, we'll focus on cases implicating guns and foreign affairs.  Let's start with guns:  Missouri gun law: Missouri wants the Supreme Court to revive its Second Amendment Preservation Act, which prohibits using state resources to enforce federal gun laws that Missouri's GOP-led legislature believes are unconstitutional. The Biden administration sued and won in the lower court, which ruled the law violated the Supremacy Clause. The Trump administration hasn't abandoned the challenge and wants the justices to turn away Missouri's appeal, Missouri v. United States.  Hawaii's private property gun law: In the latest case asking the court to clarify its expanded view of the Second Amendment, three Hawaii residents and a local gun rights group want the court to consider blocking a state law that prohibits concealed carry permit holders from carrying handguns on private property without the owner's express permission. The Trump administration is backing the challengers, so this is one to watch. The case is Wolford v. Lopez.  As for foreign affairs:  Malaysia Airlines crash: The family of a victim killed in the 2014 crash of Malaysia Airlines Flight 17, which was downed by Russian-backed forces in Eastern Ukraine, is attempting to sue the largest bank in Russia, Sberbank. The family says it processed money transfers to the forces' supporters. Just one problem: The Russian government now owns a majority stake in the bank, meaning it is presumptively immune from U.S. lawsuits under the Foreign Sovereign Immunities Act. Lower courts denied the bank immunity, and in Skerbank of Russia PJSC v. Schansman, the bank is appealing to end the lawsuit.  Turkish bank prosecution: It's not just Russia. Halkbank, which is majority-owned by the Turkish government, is also at the Supreme Court seeking immunity. Again. In 2023, the Supreme Court ruled the U.S. criminal prosecution of Halkbank for allegedly evading Iranian sanctions could move forward, but the court sent the case back to lower courts to examine a different immunity argument advanced by the bank. A lower court rejected it, and in Halkbank v. United States, the bank wants the justices to endorse it.  Energy lawsuits against Spain: In Kingdom of Spain v. Blasket Renewable Investments LLC, Spain is attempting to assert FSIA immunity from lawsuits filed by several energy companies. The companies want to confirm arbitration awards they won against Spain after the country cut electricity subsidies as part of austerity measures in the wake of the financial crisis. Spain says the companies are only suing in U.S. courts because European courts wouldn't have entertained it.   ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:   Today Sean Dunn, the former Justice Department employee who allegedly threw a sub sandwich at a U.S. Customs and Border Protection agent and became a symbol of defiance amid Trump's crackdown in D.C., is due in court for an arraignment before a federal judge in Washington.   Another federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in a challenge to the Trump administration's plans to deport hundreds of Guatemalan children.   Thursday The full U.S. Court of Appeals for the 4th Circuit will hear oral arguments in a coalition of government unions' challenge to the Department of Government Efficiency's access to the Social Security Administration.   The 4th Circuit will hear oral arguments in the Trump administration's appeal of a judge's ruling enjoining parts of Trump's anti-diversity, equity and inclusion orders.   Nadine Menendez, the wife of ex-Sen. Bob Menendez (D-N.J.), is set to be sentenced for her role in a scheme to trade his political power for lavish bribes.  A federal judge in Massachusetts is set to hold a preliminary injunction hearing in the Environmental Defense Fund's challenge to recent Environmental Protection Agency actions the group says is the groundwork for overturning the 2009 endangerment finding that determined greenhouse gases threaten American public health and are worsened by vehicle emissions.  Friday The 4th Circuit will hear oral arguments in the Trump administration's appeal of a judge's ruling blocking his birthright citizenship executive order.   Monday Utah lawmakers have asked the state supreme court to rule by Monday on their emergency request to halt a ruling tossing the state's congressional map.  A federal judge in Massachusetts will hold a hearing on the federal government's bid to dismiss a challenge to the federal law requiring all male citizens to register for the draft. A woman whose draft application was rejected is challenging her exclusion as unconstitutional.  Tuesday The Judicial Conference, the policymaking arm of the federal judiciary, will hold its biannual meeting.   WHAT WE'RE READING NBC News's Lawrence Hurley: In rare interviews, federal judges criticize Supreme Court's handling of Trump cases  WIRED's Emi Nietfeld: The Baby Died. Whose Fault Is It?  Fourth Amendment expert Orin Kerr in The Volokh Conspiracy: Supreme Court Lifts Injunction in Los Angeles Immigration Enforcement Case  New York Times's Adam Liptak: Justice Breyer Defends Judge Accused of Defying Supreme Court Order  POLITICO E&E's Manuel Quiñones: Senators taking on more Trump appeals court nominees  We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2025 Nexstar Media Inc.   |   All Rights Reserved.

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