BRUSSELS — Europe isn’t popping the champagne corks just yet even after U.S. Supreme Court judges cast doubt on the future of Donald Trump’s sweeping tariffs. 

In a highly anticipated hearing on Wednesday, both conservative and progressive judges sharply questioned the U.S. president’s use of emergency powers to impose tariffs on the rest of the world — including the European Union. 

Yet officials and observers across the Atlantic know full well that should the court strike down the tariffs, in cases brought by a dozen Democratic-run states and two sets of private companies, Trump will find a way to replace them.

“The president’s authority is not limited,” German lawmaker Bernd Lange, who chairs the European Parliament’s international trade committee, told POLITICO. “New legal bases will be sought, which will again entail significantly greater effort and perhaps further uncertainties for certain product groups.” 

Trump imposed his duties — including a 15 percent baseline tariff on the 27-nation bloc — under the International Emergency Economic Powers Act, a 1977 sanctions law that empowers the president to “regulate” imports but does not specifically authorize tariffs. 

A key question now is whether Trump, in imposing his “Liberation Day” tariffs in April, grabbed power that is constitutionally bound to Congress.

During the hearing, Chief Justice John Roberts questioned why Trump believed he had the authority to impose tariffs under a law that has never been used for that purpose. 

Tariffs are a form of taxation and “that has always been the core power of Congress,” Roberts said. “So, to have the president’s foreign affairs power trump that basic power for Congress seems to me to kind of neutralize between the two powers, the executive power and the legislative power.”

The skeptical tone struck by judges from both U.S. political camps has led some observers to predict a majority ruling by the nine-judge bench to kill the tariffs. For that to happen, some or all of Trump’s own conservative appointees on the bench — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — would need to vote against them. 

“Not only the Court’s liberal judges but also key conservative judges such as Justice Roberts, Coney Barrett, Gorsuch and Kavanaugh advanced a deeply skeptical line of questioning,” said David Kleimann, a senior researcher at think tank ODI Global. 

The hearing, Kleimann said, “will certainly give rise to hopes among international stakeholders that the Court will annul the tariff orders, which will, however, remain a matter of first seeing and then believing.”

Fixing a ‘global problem’ 

Even if the Supreme Court strikes down the tariffs, Brussels wouldn’t be out of the woods. 

Trump’s sectoral tariffs on pharmaceuticals, cars and steel using other legal avenues — chiefly Section 232 investigations into specific industrial sectors — aren’t the subject of the case before the Supreme Court. And it is those measures that are inflicting the most pain on European exporters.

Precisely because of that, former EU Trade Commissioner Pascal Lamy cautioned his fellow Europeans to “not rejoice too quickly.” 

“If Trump loses this case, he will use other legal grounds, albeit more complicated ones,” Lamy told POLITICO, referring to the sectoral tariffs. 

“It would be great if they were overturned and they had trouble reinstating the latest tariffs, but we’re not counting on it,” agreed an EU trade diplomat, who was granted anonymity to speak candidly. 

One argument made by the Trump administration — including by the government’s lawyer, Dean John Sauer — is that the tariffs are needed because America’s trade deficits with many of its trading partners are, in fact, a genuine emergency.

Sauer argued that the trade deficits the tariffs are intended to address are “a global problem.” Countries hit by tariffs “haven’t disputed … that the president has correctly identified that virtually every major trading partner has this longstanding, so asymmetric, unfair treatment of our trade.”

In Europe’s case, that is true: Commission President Ursula von der Leyen admitted, as she struck the EU’s trade deal with Trump, that it was “actually about rebalancing. So you can call it fairness, you can call it rebalancing. We have a surplus, the U.S. has a deficit, and we need to rebalance it.” 

By buying into Trump’s narrative, von der Leyen handed his team a victory — allowing Trade Representative Jamieson Greer to boast about a new trading era, dubbed the “Turnberry system” after the Scottish golf course where Trump and von der Leyen shook hands on their deal in July. 

How firm is a handshake? 

For the EU, the question now is how solid a foundation it has built with the Turnberry accord, which was baked into a bare-bones joint statement the following month. 

EU officials assert that the 15 percent tariff cap on most exports should hold even if the Supreme Court throws out Trump’s tariffs. A decision is expected by the end of this year, but could come much sooner.

The European Commission declined to comment on legal proceedings in another country as a matter of policy. “But I can say that the Commission’s focus is on implementing the commitments spelled out in the EU-U.S. joint statement,” deputy chief spokesperson Olof Gill said Thursday.

Ultimately, however, the court’s decision could have knock-on effects on legislation to implement the EU’s side of its deal with Washington.

The European Parliament, which needs to pass the enabling legislation, has taken a critical view of the U.S. deal. Many lawmakers fault the EU executive for agreeing to a humiliating one-sided deal by agreeing to abolish all tariffs on U.S. industrial goods.

A Supreme Court verdict striking down the U.S. tariffs could swell the camp of lawmakers determined to vote down the procedure. 

“It would be very unlikely that the EU Parliament [would] continue its work on lowering EU tariffs on U.S. products in case the Court declares the U.S. tariffs illegal,” said Brando Benifei, a Spanish Socialist who chairs the Parliament body responsible for strengthening ties with the U.S. 

“It would be absurd.”