A federal appeals court observed that “the economic impact of the tariffs is predicted to be many magnitudes greater than the two programs that the Supreme Court has previously held to implicate major questions.” The appeals court cited the loans case and the high court’s ruling against the Covid-19 eviction moratorium.

The Federal Circuit decision is one of two tariff rulings on appeal at the high court. The other is from a federal district judge in Washington, who also cited the loans case in ruling against the administration. “If Congress had intended to delegate to the President the power of taxing ordinary commerce from any country at any rate for virtually any reason, it would have had to say so,” wrote U.S. District Judge Rudolph Contreras, an Obama appointee.

Both rulings said Trump couldn’t rely on a federal law he cited called the International Emergency Economic Powers Act. “The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs,” the Federal Circuit wrote. “No other President has ever purported to impose tariffs under IEEPA,” Contreras noted.

For one thing, consider that the Federal Circuit’s ruling was divided, so we can look to the dissent for points the justices could latch onto. Authored by Obama appointee Richard Taranto, the dissent maintained that IEEPA “authorizes tariffs to regulate importation” and “embodies an eyes-open congressional grant of broad emergency authority in this foreign-affairs realm, which unsurprisingly extends beyond authorities available under non-emergency laws.”

In a brief to the justices ahead of the hearing, the administration leans into that foreign affairs and national security angle. It cited a concurring opinion from Justice Brett Kavanaugh earlier this year — in a case unrelated to tariffs — in which the Trump appointee wrote that “the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.” The brief went on to argue that IEEPA “is all about major questions, and the more natural presumption is that Congress intends broad language conferring emergency powers to be construed broadly, not narrowly.”

Thus, the administration, backed by general reasoning from Kavanaugh and specific reasoning from dissenting circuit judges, presents the justices with a path to bless Trump’s latest sweeping assertion of executive power — even if it flies in the face of the law and the court’s Biden-era skepticism.